Advancing HIV Justice 4: new report highlights more successes, continued challenges

A new report published today (July 22nd 2022) by the HIV Justice Network (HJN) on behalf of HIV JUSTICE WORLDWIDE shows that the global movement to end HIV criminalisation continues to achieve remarkable successes, despite the many challenges that COVID-19 has brought.

Advancing HIV Justice 4: Understanding Commonalities, Seizing Opportunities provides a progress report of achievements and challenges in global advocacy against HIV criminalisation. The report generally covers a three year period ending 31 December 2021 where Advancing HIV Justice 3 ended. However, significant law reform developments that took place in the first quarter of 2022 are also included in report’s maps and analysis.

The successes

During the reporting period, four HIV criminalisation laws were repealed; another HIV criminalisation law was found to be unconstitutional; and six laws were ‘modernised’ (i.e. applied up-to-date science on HIV-related risk or harm and/or legal and human rights principles to limit the application of the law) five of which were in the United States.

In addition, we saw precedent-setting cases in four countries and policy recommendations or improvements in four further countries — all of which have the potential to limit the overly broad application of the law to people living with HIV based on HIV-positive status.

While legislative processes slowed down or stalled in some places due to COVID-19 diminishing capacity for advocacy, more HIV criminalisation laws were modernised or repealed in the United States than during any other time period, the realisation of a maturing PLHIV-led HIV decriminalisation movement that began a decade or more ago.

These outcomes were primarily due to sustained advocacy – most of it led by PLHIV networks working with allies – using a wide range of strategies. These are analysed in the report by HJN’s senior policy analyst, Alison Symington.

The challenges

However, too many HIV criminalisation cases and continued high numbers of HIV-related criminal laws continue to be of great concern, requiring more attention, co-ordinated advocacy, and funding.

Our global audit of HIV-related laws found that a total of 82 countries (111 jurisdictions) have criminal laws that are HIV-specific. Of those, we are aware of 52 jurisdictions in 35 countries that have applied their HIV-specific criminal laws.

Another 89 jurisdictions in 48 countries have applied non-HIV-specific, general criminal laws in an overly broad manner since the first prosecution in 1986.

Our case analysis shows that HIV criminalisation continues to disproportionately impact women, racial and ethnic minorities, migrants, gay men and other men who have sex with men, transgender people, and sex workers.

Although the total number of cases has diminished in some US states as well as in countries that were previously HIV criminalisation hotspots – Canada, Czech Republic, Norway, Sweden, and Zimbabwe – too many unjust prosecutions and convictions continue to be reported.

During the reporting period, we recorded 275 cases in HJN’s Global HIV Criminalisation Database. However, when we include case numbers from several Eastern European and Central Asian countries that provide official data, we estimate almost 700 criminal cases over the reporting period.

Notwithstanding the limitations of tabulating cases globally, the highest number of reported cases during the period covered by this report were in:

The report is available to download in English, French, Russian and Spanish. 

Acknowlegements

Advancing HIV Justice 4 was conceived and edited by HJN’s executive director, Edwin J Bernard, and HJN’s senior policy analyst, Alison Symington. Alison Symington researched and wrote all chapters except for ‘Global Overview’, which was researched and written by Edwin J Bernard, using data collected by Sylvie Beaumont and analysed by Tenesha Myrie.

Additional input was provided by: Gonzalo Aburto (The Sero Project), India Annamanthadoo (HIV Legal Network), Stephen Barris (Ex Aequo), Sophie Brion (International Community of Women Living with HIV), Janet Butler-McPhee (HIV Legal Network), Nyasha Chingore-Munazvo (AIDS and Rights Alliance for Southern Africa), Kenechukwu Esom (United Nations Development Programme), Elie Georges Ballan (The Joint United Nations Programme on HIV/AIDS – UNAIDS), Alfredo González (Hondureños Contra el SIDA), Julian Hows (HIV Justice Network), Deidre Johnson (Ending Criminalization of HIV and Overincarceration in Virginia Coalition), Cécile Kazatchkine (HIV Legal Network), Svitlana Moroz (Eurasian Women’s Network on AIDS), Immaculate Owomugisha Bazare (Uganda Network on Law Ethics and HIV/AIDS), Stephen Page (Nevada HIV Modernization Coalition), Cedric Pulliam (Ending Criminalization of HIV and Overincarceration in Virginia Coalition), Florence Riako Anam (Global Network of People Living with HIV), Mianko Ramaroson (The Joint United Nations Programme on HIV/AIDS – UNAIDS), Demario Richardson (Missouri HIV Justice Coalition), Sean Strub (The Sero Project), and Alexandra Volgina (Global Network of People Living with HIV).

We would especially like to acknowledge the courage and commitment of the growing number of people living with HIV and allies around the world who are challenging laws, policies and practices that inappropriately regulate and punish people living with HIV. Without them, this report — and the victories reported herein — would not have been possible.

We gratefully acknowledge the financial contribution of the Robert Carr Fund to this report.

US: Enforcement of HIV crimes in Tennessee disproportionately affects women and Black people

150 people on Tennessee’s sex offender registry for HIV-related conviction

Nearly one-half of HIV registrants on the SOR were women and over three-quarters of HIV registrants were Black.

LOS ANGELES – At least 154 people have been placed on Tennessee’s sex offender registry (SOR) for an HIV-related conviction since 1993, according to a new report by the Williams Institute at UCLA School of Law.

Enforcement of HIV crimes in Tennessee disproportionately affects women and Black people. Nearly one-half of HIV registrants on the SOR were women and over three-quarters of HIV registrants were Black.

Tennessee’s two primary HIV criminalization laws—aggravated prostitution and criminal exposure—make it a felony for people living with HIV to engage in sex work or other activities, such as intimate contact, blood donation, or needle exchange, without disclosing their status. Both are considered a “violent sexual offense” and require a person convicted to register as a sex offender for life.

Examining Tennessee’s sex offender registry, researchers found that Shelby County, home to Memphis, accounts for most of the state’s HIV convictions. Shelby County makes up only 13% of Tennessee’s population and 37% of the population of people living with HIV in the state, but 64% of HIV registrants on the SOR. Moreover, while Black Tennesseans were only 17% of the state’s population and 56% of people living with HIV in the state, 75% of all HIV registrants were Black.

In Shelby County, 91% of aggravated prostitution convictions resulted from police sting operations in which no physical contact ever occurred. In addition, the case files showed that 75% of those convicted were Black women. When it came to criminal exposure case files, all of those convicted except one person were Black men.

“Tennessee’s HIV criminal laws were enacted at a time when little was known about HIV and before modern medical advances were available to treat and prevent HIV,” said lead author Nathan Cisneros, HIV Criminalization Analyst at the Williams Institute. “Tennessee’s outdated laws do not require actual transmission or the intent to transmit HIV. Moreover, the laws ignore whether the person living with HIV is in treatment and virally suppressed and therefore cannot transmit HIV.”

KEY FINDINGS

  • Incarcerating people for HIV-related offenses has cost Tennessee at least $3.8 million.
  • Of the 154 people who have been placed on Tennessee’s SOR for an HIV-related conviction, 51% were convicted of aggravated prostitution, 46% were convicted of criminal exposure, and 3% were convicted of both.
  • Women account for 26% of people living with HIV in Tennessee and 4% of people on the SOR, but 46% of the SOR’s HIV registrants.
  • Black people account for 17% of people living in Tennessee, 56% of those living with HIV, 27% of people on the SOR, but 75% of the SOR’s HIV registrants.
  • Black women were the majority of aggravated prostitution registrants (57%), while Black men were the majority of criminal exposure registrants (64%).
  • People with an HIV-related offense are more economically vulnerable when compared to others on the state’s SOR.
    • One in five (19%) HIV registrants were homeless compared to 9% of all SOR registrants.
    • 28% of HIV registrants reported an employer address compared to about half (49%) of all SOR registrants.
  • Shelby County has one aggravated prostitution conviction for every 115 people living with HIV in the county, and Black people were 90% of all people convicted for aggravated prostitution.
    • Over 90% of aggravated prostitution convictions in Shelby County were the result of police sting operations.
    • Only 3% of aggravated prostitution convictions in Shelby County alleged any intimate contact.
    • Nearly all (95%) people arrested in Shelby County for criminal exposure were Black men, compared to 64% of people statewide.

The Williams Institute has conducted research on HIV criminalization in numerous U.S. states.

US: New study from the Williams Institute analyses data on HIV criminalization in Tennessee

Enforcement of HIV Criminalization in Tennessee

Tennessee’s two primary HIV criminalization laws—aggravated prostitution and criminal exposure—are considered a “violent sexual offense” and require a person convicted to register as a sex offender for life. Using data obtained from Tennessee’s sex offender registry, this study examines the enforcement of HIV criminalization laws in Tennessee from 1991 to 2022.

To read the full report, please go to: https://williamsinstitute.law.ucla.edu/publications/hiv-criminalization-tennessee/

We support the Support. Don’t Punish
2022 Global Day of Action

Now celebrating its tenth anniversary, the Support. Don’t Punish campaign promotes justice for people who use drugs – including people living with HIV. We wholeheartedly support the campaign’s messages:

  • The drug control system is broken and in need of reform.
  • People who use drugs should not be criminalised.
  • People involved in the drug trade should not face harsh or disproportionate punishments, where retained.
  • The death penalty should never be imposed for drug offences.
  • Drug policy should focus on health, well-being, harm reduction and meaningful community engagement.
  • Drug policy budgets need rebalancing to ensure health and harm reduction-based responses are adequately financed.

This Sunday, 26th June, is the campaign’s yearly high point, the 2022 Global Day of Action. The 26th June is symbolic as it is used by most governments to commemorate the International Day Against Drug Abuse and Illicit Trafficking to highlight their so-called ‘achievements’ in “the war on drugs.”

Last year’s Global Day of Action saw 365 events in over 260 cities in nearly 100 countries. In mobilising for change, most campaigners relied on a bottom-up and community-centred approach to organising, inviting potential and aspiring allies and accomplices to collectively create a world where drug policy promotes care and compassion, not discrimination and stigma.

According to the campaign’s website, “The 2022 Global Day of Action marks a very special anniversary for the Support. Don’t Punish campaign. For a decade, campaigners in all corners of the world have mobilised decisively to counter the harmful ‘war on drugs’ and the many systems of violence and neglect at its heart, and to build sustainable alternatives based on harm reduction and decriminalisation.”

This year, we urge you to join thousands of advocates and activists in supporting the Support. Don’t Punish Global Day of Action. Visit their homepage to check out where activities are taking place near you, and use these resources to amplify the campaign’s messages on social media, including on Facebook, Twitter and Instagram.

Mwayi’s Story: a short film about courage,
women’s rights, and HIV justice

Today we are delighted to share with the world a new short film, Mwayi’s Story, produced by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE.

Mwayi’s Story is a story about courage, and about women standing up for their rights. The film is based on the story of a woman in Malawi who was prosecuted for briefly breastfeeding another woman’s baby and the subsequent successful advocacy in Malawi to prevent an HIV criminalisation statute being passed.

Ultimately, Mwayi’s Story is about HIV justice!

We wanted to produce a film that was authentic to the lived experience of an HIV criminalisation survivor but without making her go through the trauma of having to relive the experience by telling her story again.

HJN’s video, visuals and webshows consultant, Nicholas Feustel, who produced and directed the film, said: “Since this story is primarily about mothers and children, we decided to produce the film in the style of an illustrated children’s storybook. We searched for a female illustrator working in sub-Saharan Africa and found the wonderful Phathu Nembilwi of Phathu Designs.

“For our narrator, we found Upile Chisala, a storyteller from Malawi known for her short and powerful poems.”

The script by HJN’s Senior Policy Analyst, Alison Symington, was written in consultation with our Supervisory Board member, Sarai Chisala-Tempelhoff, a Malawian human rights lawyer and legal researcher with over 15 years of experience in women’s access to justice.

We also worked with our HIV JUSTICE WORLDWIDE partners, Southern Africa Litigation Centre (SALC) and AIDS and Rights Alliance for Southern Africa (ARASA), to ensure that the film was relevant to their ongoing advocacy in the region. In fact, Mwayi’s Story had its world premiere last week on Zambia’s Diamond TV, in anticipation of a verdict in a similar breastfeeding case.

The film will be shown in a number of forums over the next few months, including at AIDS 2022. It will soon be subtitled in French, Russian and Spanish, and we are also looking for partners to translate additional subtitles if they think the film can be useful in their own advocacy. If you’re interested you can get in touch with us at breastfeeding@hivjustice.net. We will send you the English subtitle file for translation. After you return the file to us, we will upload it to YouTube.

Mwayi’s Story is part of our ongoing work to end the criminalisation of women living with HIV for breastfeeding and comfort nursing, including our Breastfeeding Defence Toolkit. It is our goal to collaborate with advocates, researchers, service providers, organisations and community members around the world to raise awareness and prevent further unjust prosecutions against women living with HIV who breastfeed or comfort nurse. We are grateful to both the Elizabeth Taylor AIDS Foundation and the Robert Carr Fund for their financial support for this work, and this film.

New report shows how women living with HIV are leading the response against HIV criminalisation in the EECA region

A new report produced by the Eurasian Women’s Network on AIDS with the Global Network of People Living with HIV on behalf of HIV JUSTICE WORLDWIDE, illustrates how women living with HIV, who are disproportionally impacted by HIV criminalisation across the Eastern Europe and Central Asia (EECA) region, have also been the leaders in research, advocacy and activism against it. The report is now available in English after being originally published in Russian in January.

The report illustrates how HIV criminalisation and gender inequality are intimately and inextricably linked. By highlighting prosecution data from Belarus, Kazakhstan, Russia and Ukraine disaggregated by sex, the report shows how the burden of HIV criminalisation is falling upon women.

The report also includes some heart-breaking personal stories including that of a woman in Russia who was prosecuted for breastfeeding her baby, as well as several women in Russia blackmailed by former partners who threatened to report them for alleged HIV exposure as a way to control, coerce, or abuse them.

The evidence provided in the report clearly demonstrates that HIV criminalisation not only fails to protect women from HIV, but worsens their status in society, making them even more susceptible to violence and structural inequalities due to the way their HIV-positive status is framed by the criminal law.

The report goes on to explore how women living with HIV in the region are vulnerable to a range of economic consequences including loss of property, as well as ostracism and discrimination in their communities, including being separated from their children, because:

  • Women living with HIV’s reproductive and maternal choices are controlled by, and can be abused by, the state.
  • Women living with HIV in partnerships with HIV-negative men can be threatened with prosecution, or be prosecuted, even if there has been prior disclosure and consent to the ‘risk’ and even when condoms were used or the woman had an undetectable viral load.
  • Confidential medical information can be illegally shared with law enforcement agencies.

The report also shows a direct connection between HIV criminalisation and other forms of criminalisation – notably the use and possession of drugs, and of sex work – that exacerbate the burden of discrimination, the violation of rights, and violence experienced by women living with HIV in the region.

Despite the difficult picture painted, the report provides hope, however.

It is the mobilisation of the women’s community and the meaningful participation of HIV-positive women and their allies in advocacy for law reform, rights protections – and in the preparation of alternative reports to UN Committees such as the Committee on the Elimination of Discrimination against Women (CEDAW) – that are making a real difference in the fight against HIV criminalisation in the region.

Read the report in English or Russian.

US: Disability Rights Education & Defense Fund (DREDF) publishes statement opposing HIV criminalisation

DREDF HIV Criminalization Statement

Disability Rights Education & Defense Fund (DREDF) opposes the criminalization of people based on their HIV-positive status. In addition to being harmful to public health, laws and prosecution targeting HIV-positive people constitute discrimination on the basis of disability. The Americans with Disabilities Act (ADA)[1] prohibits disability discrimination by state and local governments.[2] State laws and prosecutions that criminalize people living with HIV without a basis in current objective medical and scientific knowledge violate the ADA and other antidiscrimination mandates. We urge lawmakers across the country to modernize their HIV laws and policies, and to discard outdated and harmful punitive approaches.

Background

During the outset of the HIV epidemic, many states enacted laws that criminalized or enhanced the criminal penalties for certain acts by people living with HIV that were thought to create the risk of exposure to HIV.[3] These laws were passed at a time when fear and misinformation about HIV was widespread, particularly about how HIV is transmitted. Today, with the benefit of more than 30 years of research and considerable advances in medical treatments, the scientific and medical communities have learned much more about how HIV is transmitted and how to prevent transmission. We now know that HIV is not spread through saliva, tears, or sweat.[4] We also know that the use of condoms, PrEP (pre-exposure prophylaxis), and antiviral medication, by themselves or in combination, can dramatically reduce the risk of HIV transmission, in some cases to zero.[5] HIV has also become a medical condition that is managed with medications and other treatments, with people with HIV now having a life expectancy that matches that of the general public.[6] Yet most HIV criminal laws do not reflect current scientific and medical knowledge.[7] In addition, HIV criminalization laws undermine public health by discouraging people from seeking testing and treatment options, such as antiviral medication, that can protect their health and reduce transmission.[8]

Outdated HIV criminalization laws constitute disability discrimination because they treat people living with HIV more harshly without an objective scientific basis. Several states, such as California, Missouri, and North Carolina, have taken steps in recent years to modernize their state HIV laws.[9] Unfortunately, many state laws have still not been updated to reflect current scientific and medical knowledge. Laws in several states criminalize acts that cannot transmit HIV, such as spitting,[10] or that pose no material risk of transmission.[11] These laws do not account for actions that reduce risk, such as condom usage or PrEP or whether transmission has actually occurred.[12]
People with disabilities, including people living with HIV, deserve to live lives free from discrimination and irrational prejudice. DREDF opposes outdated laws that single out people for criminal penalties or enhanced criminal penalties based on their HIV-positive status. These laws violate the ADA and undermine public health.  They should be repealed.

[1] 42 U.S.C. § 12131 et seq.

[2] 42 U.S.C. § 12132.

[3] See J. Kelly Strader, Criminalization as a Policy Response to a Public Health Crisis, 27 J. Marshall L. Rev. 435 (1994); Wendy E. Permet, AIDS and Quarantine: The Revival of an Archaic Doctrine, 14 Hofstra L. Rev. 53 (1985-1986).

[4] Centers for Disease Control and Prevention, Ways HIV is Not Transmitted, (April 21, 2021) available at https://www.cdc.gov/hiv/basics/hiv-transmission/not-transmitted.html (“[HIV] is not transmitted […] Through saliva, tears, or sweat”).

[5] Robert W. Eisinger, Carl W. Dieffenbach, Anthony S. Fauci, HIV Viral Load and Transmissibility of HIV Infection: Undetectable Equals Untransmittable, Journal of the American Medical Association (2019), available at https://jamanetwork.com/journals/jama/article-abstract/2720997; National Institute of Allergy and Infectious Disease, The Science Is Clear—With HIV, Undetectable Equals Untransmittable: NIH Officials Discuss Scientific Evidence and Principles Underlying the U=U Concept, (Jan. 10 2019), available at https://www.niaid.nih.gov/news-events/science-clear-hiv-undetectable-equals-untransmittable (“In recent years, an overwhelming body of clinical evidence has firmly established the HIV Undetectable = Untransmittable (U=U) concept as scientifically sound, say officials from the National Institutes of Health. U=U means that people living with HIV who achieve and maintain an undetectable viral load—the amount of HIV in the blood—by taking and adhering to antiretroviral therapy (ART) as prescribed cannot sexually transmit the virus to others.”); Alison J. Rodger, Valentina Cambiano, Tina Bruun, et al., Sexual Activity Without Condoms and Risk of HIV Transmission in Serodifferent Couples When the HIV-Positive Partner Is Using Suppressive Antiretroviral Therapy, JAMA. 2016;316(2):171-181. doi:10.1001/jama.2016.5148 (2016), available at https://jamanetwork.com/journals/jama/fullarticle/2533066;  Roger Chou, Christopher Evans, Adam Hoverman, et al., Preexposure Prophylaxis for the Prevention of HIV Infection: Evidence Report and Systematic Review for the US Preventive Services Task Force, JAMA (2019), available at https://jamanetwork.com/journals/jama/fullarticle/2735508; Centers for Disease Control and Prevention, PrEP Effectiveness (May 13, 2021), available at  https://www.cdc.gov/hiv/basics/prep/prep-effectiveness.html (“PrEP reduces the risk of getting HIV from sex by about 99% when taken as prescribed.”).

[6] Hasina Samji, et al., Closing the Gap: Increases in Life Expectancy among Treated HIV-Positive Individuals in the United States and Canada (December 18, 2013), PLOS ONE, available at https://doi.org/10.1371/journal.pone.0081355.

[7] Division of HIV Prevention, National Center for HIV, Viral Hepatitis, STD, and TB Prevention – Centers for Disease Control and Prevention, HIV Criminalization and Ending the HIV Epidemic in the U.S., available at https://www.cdc.gov/hiv/policies/law/criminalization-ehe.html (“After more than 30 years of HIV research and significant biomedical advancements to treat and prevent HIV, most HIV criminalization laws do not reflect current scientific and medical evidence.”).

[8] Division of HIV Prevention, National Center for HIV, Viral Hepatitis, STD, and TB Prevention – Centers for Disease Control and Prevention, HIV Criminalization and Ending the HIV Epidemic in the U.S., available at https://www.cdc.gov/hiv/policies/law/criminalization-ehe.html (“[HIV criminalization] laws have not increased disclosure and may discourage HIV testing, increase stigma against people with HIV, and exacerbate disparities.”); J. Stan Lehman et al., Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, AIDS Behav. 2014; 18(6): 997–1006., available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4019819/.

[9] Division of HIV Prevention, National Center for HIV, Viral Hepatitis, STD, and TB Prevention – Centers for Disease Control and Prevention, HIV and STD Criminalization Laws, available at https://www.cdc.gov/hiv/policies/law/states/exposure.html.

[10] See, e.g., MISS. CODE ANN. § 97-27-14(2); Ind. Code §§ 35-42-2-1, 35-45-16-2(c), 35-50-3-3; OHIO REV. CODE ANN. §§ 2921.38, 2929.14.; 18 PA. CONS. STAT. ANN. § 2703.

[11] See ALA. CODE § 22-11A-21; ARK. CODE ANN. § 5-14-123; Centers for Disease Control and Prevention, Ways HIV Can Be Transmitted, (April 21, 2021) available at https://www.cdc.gov/hiv/basics/hiv-transmission/ways-people-get-hiv.html (“[t]here is little to no risk of getting HIV” from oral sex); Julie Fox, Peter J. White, Jonathan Weber, et al., Quantifying Sexual Exposure to HIV Within an HIV-Serodiscordant Relationship: Development of an Algorithm, AIDS 2011, 25:1065–1082 at 1077 (2011).

[12] J. Stan Lehman et al., Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, AIDS Behav. 2014; 18(6): 997–1006., available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4019819/.

Pressure to produce more content with fewer staff hinders journalists ability to improve their media coverage of HIV criminalisation

Journalists’ working conditions foster stigmatising coverage of HIV criminalisation

For many years, HIV activists and researchers have criticised the stigmatising way that HIV criminalisation cases are covered in the mainstream press. However, an ethnographic study recently published in the Canadian Review of Sociology argues that the working conditions in which journalists now operate makes it extremely challenging for them to improve their reporting on HIV criminalisation.

With the shift to online news creating revenue challenges, newsrooms are under pressure to produce more content with fewer staff. This has resulted in journalists relying on police press releases as sources of news for crime stories, including HIV criminalisation. The author of the study argues that, without targeted efforts to disrupt the mainstream narrative on HIV criminalisation, “this type of newswork makes it likely that longstanding patterns of sensational, stigmatising news will persist.”

Previous studies highlight how reporting on HIV criminalisation often makes people living with HIV seem dangerous to society and exaggerates the risks of HIV transmission. Such messaging frequently relies on harmful gender and racial stereotypes and serves to increase stigma towards people living with HIV and other marginalised communities. It also has serious negative repercussions for those individuals involved in cases, making them ‘eternally googleable’ which can prevent them from gaining employment or housing.

HIV criminalisation laws in Canada are especially severe, with people living with HIV at risk of conviction for non-disclosure of their HIV status to sexual partners – even when transmission has not occurred.

Dr Colin Hastings of Concordia University in Canada wanted to understand how journalists go about writing stories on HIV criminalisation, with the hope that this might reveal opportunities for HIV activists and advocates to improve reporting on this topic. He therefore undertook ethnographic interviews with 20 journalists and one police communications representative. The interviews generally started with a question asking the participants to describe a typical workday and explored the conditions which influence their everyday activities.

Findings

The interviews revealed that the pressure on journalists to produce a constant flow of content across multiple platforms hinders their ability to conduct fact-checking or more in-depth investigation. A reporter described how he considers:

“Every hour as a deadline… so sometimes I’m like, ugh, this story could have been so much better had I had time to go through everything.”

In this context, repurposing ready-made text from other sources represents a quick and efficient strategy for producing content. When writing crime stories, this usually means relying on press releases issued by the police – whose communications departments are adept at ensuring that their texts flow easily into newsrooms.

An online web editor described how her work consisted of “copy and pasting it pretty much” while a reporter said:

“With the police, I just usually do the stuff they send out, they send a daily update of what’s happening on their side, the police side, and usually I take a look at that and re-write those.”

Many of the interviewees felt this was an unfortunate but inevitable fact of contemporary journalism, as they struggle to keep pace with the unrelenting online news cycle. Yet the interviews demonstrated how the reliance on police press releases means that it is not only information provided by the police but also the police’s perspective on an event that is repackaged as ‘news’.

A police communications representative mentioned in their interview that a key factor in the police’s decision to publish a press release about a case is whether they believe there is a threat to public safety. This threat is made clear by combining an individual’s name, photo, and personal information with descriptions of criminal charges they face and language emphasising the danger they pose – for example, “police are concerned there may be more victims”.

In the context of HIV criminalisation, this means equating non-disclosure of HIV with dangerous criminality. Journalists covering crime stories often do not have the experience, time, or resources to question this, as outlined by a veteran reporter:

“HIV non-disclosure was always covered as a crime if the police think it’s a crime… the cops say this is a crime, and you say oh god this is a crime, crime is bad, this person is a bad person.”

The language of public safety also serves as a signal to journalists that a case may be particularly newsworthy. A breaking news reporter said:

“They [the police] might say very clearly that there is a huge public safety element… Language like that is a really good indicator [of newsworthiness] for us.”

What determines newsworthiness is also directed by what is likely to be read and shared widely. ‘Good’ headlines are those that draw the highest volume of readers to the story. An experienced reporter named Lisa explained how this creates pressure to choose more salacious wording for headlines about HIV criminalisation:

“You can write two headlines for your story, and the [software] system will push them out there and then you can see which headline is attracting more clicks so that at a certain point you can just bail on the more boring headline and go to the salacious headline that’s working better.”

As well as the police press releases serving to provide journalists with ready-made sources of content, the police communications representative recognised the work of journalists as a cost-effective and time-efficient part of policing work:

“We now see regularly criminals surrendering shortly after we put their pictures up. And if you think about, our main account we reach thousands of people, but if a news organization with 1.75 million retweets, it means everyone in the city is going to get it… Out of all the stuff that we do, that’s the most satisfying because no one expects us to be able to get a homicide investigation to surrender, and these things are very expensive and very time consuming.”

Given that the police often reinforce social, racial, and economic inequities in society, this extension of their influence is likely to be perceived by many as a worrying development.

Conclusion

This study exposes how the pressure on journalists to produce a constant flow of online news content has reduced many to copying and pasting police press releases, since they have little time to investigate and provide further context. This results in journalists reproducing the perspective of the police in news coverage, which constructs people living with HIV as a threat to public safety.

Hastings notes that not all of the journalists interviewed felt comfortable with the reliance on police press releases as sources of news. Yet their working conditions have made it increasingly difficult for them to disrupt problematic news coverage.

While acknowledging the significant contributions already made by HIV activists to improving media coverage of HIV criminalisation stories, Hastings makes the following suggestions for activists’ efforts:

  • Producing texts (such as press releases) that can compete with those published by the police
  • Campaigning to update and reform journalistic style guides which reporters follow when crafting a story
  • Producing specialised guides for reporting on social justice issues
  • Supporting and investing in news organizations and alternative presses that practice slower, long-form journalism
  • Expanding the efforts of community-based organizations to produce their own messaging through independent publishing, social media campaigns, or in-person community forums
  • References

    Hastings C.  Writing for digital news about HIV criminalization in Canada. Canadian Review of Sociology, online ahead of print, 7 February 2022. doi: 10.1111/cars.12374

Zimbabwe becomes the second country in Africa to fully repeal its HIV-specific criminal law

Last week, Zimbabwe’s parliament finally agreed to repeal the country’s HIV-specific criminal law, section 79 of the Criminal Code.  The law which contained the provision to repeal section 79 – the Marriages Act – was originally gazetted in July 2019.  It will now be signed into law by the president.

The significance of this cannot be underestimated. Zimbabwe becomes only the second country on the African continent to fully repeal its HIV-specific criminal law after the Democratic Republic of Congo repealed its law in 2018.

Although there have been remarkable advocacy successes elsewhere on the continent in preventing an HIV-specific criminal law being enacted in Malawi in 2017 and the suspension of one of Kenya’s two HIV-specific criminal laws on the grounds of unconstitutionality in 2015, it is rare for a sitting parliament to decide to completely repeal an HIV-specific criminal law.

That it did so is testament to a multi-year, multi-stakeholder campaign that began with civil society advocates sensitising communities and parliamentarians, notably the Honorable Dr Ruth Labode, Chairperson of Parliamentary Portfolio Committee on Health and Child Care, who began pushing for a change in the law in 2018 having previously been in favour of the provision in order to protect her female constituents.

However, after attending a number of meetings, notably a November 2018 Symposium convened by Zimbabwe Lawyers for Human Rights and HIV JUSTICE WORLDWIDE partners, ARASA and SALC, along with other civil society organisations, she began to appreciate that HIV criminalisation does not, in fact protect women, but actually harms them.

We all know very well that in Zimbabwe and the world-over, we do not have diagnostic equipment which can tell us who gave HIV to the other and at what time. There is an assumption that whoever has manifested the disease first is the one who transmitted the virus. It can be anybody and it could be the other way round. If you are a woman and suddenly you find yourself positive, you will not tell your partner because of this law yet if the law was not there you would tell your partner and go and access ARVs to live happily ever after.
 
Hon Dr Ruth Labode, 2018

 

Zimbabwe was, in fact, the first African country to enact an HIV-specific criminal law, including it in the Sexual Offences Act of 2001. The law, which was supported by women’s rights groups who sought to address violence against women, made a criminal of anyone diagnosed HIV-positive who “intentionally does anything or permits the doing of anything” which (s)he “knows … will infect another person with HIV”.

The law was further amended in 2006 through the enactment of section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act, 2004. The new law, erroneously titled “Deliberate transmission of HIV”, did not require HIV transmission or for an accused to have an intention to transmit HIV: only that they undertake an act that includes “a real risk or possibility” of transmitting HIV. Further, section 79 was so broad it could be applied to anyone who knows they have HIV or who realises “there is a real risk or possibility” they might have HIV. The only defence was if the HIV-negative partner knew their partner had HIV and consented.

There were many attempts before the first reported prosecution in 2008.  Since then, there have been at least 18 further HIV criminalisation cases, making Zimbabwe the country with the highest known rate of HIV prosecutions in Africa.

As prosecutions continued, it became apparent that Zimbabwe’s HIV-specific criminal law did not protect women. Numerous cases accused women, including where it was likely that the accused was infected by her accuser spouse (although she was diagnosed first) and where men have made allegations as revenge for complaints about domestic violence.

The disproportionate impact of the law on women was highlighted in a 2015 campaign, ‘HIV on Trial – a threat to women’s health’ by Zimbabwe Lawyer’s For Human Rights (ZLHR) at the same time that they – ultimately unsuccessfully – challenged the law at the Constitutional Court. The campaign highlighted the case of Samukelisiwe Mlilo, who features in a powerful 15 minute documentary, ‘Alone But Together – Women and Criminalisation of HIV Transmission: The story of Samukelisiwe Mlilo’.

The focus then turned to repealing the law, and by 2019 the campaign to repeal the law was in full swing, supported by a wide range of stakeholders – including HIV JUSTICE WORLDWIDE, the Zimbabwe Network of People Living with HIV (ZNPP+) and UNDP.  

That year, Zimbabwe Lawyers for Human Rights and HIV JUSTICE WORLDWIDE published a range of policy documents aimed at different stakeholders – including people living with HIV, the media and parliamentarians – highlighting six key messages:

  1. Section 79 is vague, overly broad and open to unjust application.
  2. HIV criminalisation violates human rights and increases HIV stigma.
  3. HIV criminalisation laws are unscientific.
  4. HIV criminalisation does not prevent HIV.
  5. HIV criminalisation is a barrier to HIV testing, treatment and prevention.
  6. HIV criminalisation is harmful to women.

Now that Zimbabwe has repealed its law, it’s surely only a matter of time before the other 30 countries on the African continent with HIV-specific laws follow suit.  Advocates in Kenya – where the other HIV-specific criminal law is being challenged – and in Uganda – where the HIV-specific law is also being challenged – will be especially encouraged, as should all of us fighting for HIV justice around the world.