Despite a spate of good news for the eradication of HIV — the FDA’s approval of Truvada to prevent its transmission, the Supreme Court decision upholding the Affordable Care Act and thus retaining the ACA’s great benefits for those living with HIV, and the lifting of the HIV/AIDS travel ban that allowed the International AIDS Conference to take place in Washington, D.C.
University of Michigan News Service | Michigan courts use HIV disclosure laws to punish poor, marginalized individuals
ANN ARBOR, Mich.-Michigan’s felony HIV disclosure law is a tool to control and punish marginalized and poor individuals in criminal court cases, according to new University of Michigan findings. In many states, a person with HIV can be charged with a crime if he or she engages in sexual activity without telling the other person.
People with HIV Fear Unfair Treatment in Courts
People with HIV Fear Unfair Treatment in Courts Originally printed (Issue 2032 – Between The Lines News) Nearly half of HIV-positive respondents to a recently released survey on HIV criminalization say they believe they will not receive a fair hearing in the criminal justice system if they ever face charges for failing to disclose their status to sexual partners.
US: Illinois modernises its HIV-specific criminal law
By Ramon Gardenhire (from AIDS Foundation of Chicago)
In my role as director of government relations for the AIDS Foundation of Chicago (AFC), I have to come to terms with the reality that the legislative process often means having to make ugly compromises.
This sentiment hit home this past legislative session, when the Illinois General Assembly passed a bill that would amend the state’s law that makes exposing someone to HIV a crime.
The Illinois criminal transmission of HIV law, on the books since 1989, has no basis in science, discriminates against people with HIV, and stigmatizes HIV.
AFC strongly opposes the law and fights for its repeal. However, when it became abundantly clear that SB 3673 was going to pass with overwhelming support, we made a strategic decision to work the bill’s sponsor to minimize the legislation’s harm as much as possible.
We decided to make a bad law better.
SB 3673, introduced by Sen. Dale Righter (R – Mattoon) and sponsored in the House by Rep. Jim Sacia (R – Freeport) unanimously passed both chambers in the Illinois General Assembly. It amends the current HIV criminal transmission law to allow prosecutors to access medical records to learn if someone knew their HIV status, a fact that has to be established before an individual can be prosecuted.
This bill was a response to a tragic case in Whiteside County, Ill., in 2009, involving a man who allegedly knowingly exposed several women to HIV. The state’s strong HIV confidentiality law prevented police from accessing the suspect’s medical records to determine if he knew he had HIV. After charging him with 13 counts of criminally transmitting HIV to another person, the man was only sentenced with one count. There was no way to prove that he had knowingly exposed his partners to HIV.
We fear that the amendment to the law would deter individuals from testing for HIV because they could be prosecuted for criminal HIV transmission if they learn their status. Earlier versions of the bill would have allowed access to social service agency and counseling records; AFC and allies were able to remove this provision, which would have had a chilling impact on testing and risk-reduction counseling.
AFC and our partners, ACLU of Illinois and AIDS Legal Council of Chicago, were able to negotiate significant changes to the underlying law in return for not working against the provision that allowed access to medical records. The changes we made are below. This bill:
1. Requires that prosecutors prove that an individual specifically intended to transmit HIV to another individual – This is an increased legal standard that prosecutors must meet and consider before bringing criminal charges.
2. Limits acts of transmission to only “sexual activity without the use of a condom” – Prosecutors cannot charge individuals for activities that will not transmit HIV, such as biting or spitting.
3. Defines the term “sexual activity” to include only sexual acts that include insertive vaginal or anal intercourse – This means no more criminal transmission cases for oral sex or kissing.
4. Exemption from prosecution if a condom is wore during sexual activity – No more criminal charges if a person uses a condom.
Although the amended law significantly narrows the situations that could result in prosecution for criminal transmission, these cases are likely to always involve “he said he said” or “she said” cases that happen between the sheets with no witnesses.
It will be one person’s word against the other to determine if the couple used a condom and which sex acts they engaged in. Cases will hinge on whether the infected partner disclosed his or her HIV status before having sex. Too often, former partners press charges for criminal transmission as retaliation when a relationship has soured.
The bill does include an important protection against prosecutorial abuse. Judges must approve all requests for medical records, and the judge reviews records and determines if they are before they are turned over to prosecutors. However, AFC and other advocates will remain vigilant to ensure that abuses do not occur.
The bill has been sent to Gov. Pat Quinn who will likely sign the bill into law. According to the Center for HIV Law and Policy, 32 states and two U.S. territories have HIV criminal transmission laws. The bill strikes an apprehensive compromise between HIV advocates and law enforcement. While the bill is an improvement, it still contains problematic sections. AFC will continue to monitor the law once it is enacted, and look for opportunities to repeal it altogether.
Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance (HJN, 2012)
Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance
A video documentary by Edwin J Bernard and Nicholas Feustel
Produced by georgetown media for the HIV Justice Network
Doing HIV Justice demystifies the process of how civil society worked with the Crown Prosecution Service of England & Wales to create the world’s first policy and guidance for prosecuting the reckless or intentional transmission of sexual infection. The result is fewer miscarriages of justice and a better understanding of HIV throughout the entire criminal justice system.
This 30 minute educational and advocacy video explains how the guidance was developed, what challenges the key stakeholders faced and overcame, and what benefits have resulted.
Featuring
- Lisa Power (interviewee), Policy Director, Terrence Higgins Trust, London.
- Yusef Azad (interviewee), Director of Policy and Campaigns, NAT, London.
- Arwel Jones (interviewee), Head of the Law & Procedure Unit, Crown Prosecution Service Strategy & Policy Directorate, London.
- Edwin J Bernard (presenter), Co-ordinator, HIV Justice Network.
The financial contribution of UNAIDS is gratefully acknowledged
HIV Criminalisation Survivors Speak Out: Human Rights Networking Zone Panel (AIDS 2012)
Panel session in the Human Rights Networking Zone at AIDS 2012 (25 July 2012)
Organizer: HIV Justice Network
Presenters:
– Edwin J Bernard, Co-ordinator, HIV Justice Network, United Kingdom
– Louis Gay, Deputy Chair, Patient Network for HIV, Norway [from 02:28]
– Robert Suttle, Assistant Director, The Sero Project, USA [from 10:19]
– Marama Pala, Executive Director, INA – Maori, Indigenous and Pacific Island HIV/AIDS Foundation, New Zealand [from 21:00]
Video produced by Nicholas Feustel, georgetown media,
for the Canadian HIV/AIDS Legal Network
Press Conference (AIDS 2012)
HIV Criminalization – An Epidemic Of Ignorance?
Laws and prosecutions that single out people with living with HIV are ineffective, counterproductive and unjust.
As delegates from around the world met in Washington DC at AIDS 2012 to discuss how to “end AIDS” through the application of the latest scientific advances, this press conference highlighted how laws and policies based on stigma and ignorance are not only creating major barriers to prevention, testing, care and treatment, but also seriously violating the human rights of people living with HIV.
Hosted by (in alphabetical order): The Center for HIV Law & Policy / Positive Justice Project, United States; Global Network of People Living with HIV (GNP+), Netherlands; HIV Justice Network, United Kingdom/Germany; INA (Maori, Indigenous & South Pacific) HIV/AIDS Foundation, New Zealand; The SERO Project, United States; Terrence Higgins Trust, United Kingdom; UNAIDS, Switzerland.
Chaired by Paul de Lay, Deputy Executive Director, UNAIDS, Switzerland
Speakers:
– Nick Rhoades, HIV criminalization survivor, United States [from 03:28]
– Marama Pala, former complainant, New Zealand [from 09:15]
– Edwin J Bernard, Co-ordinator, HIV Justice Network/Consultant, GNP+ [from 14:35]
– Laurel Sprague, Research Director – SERO, United States [from 23:15]
– Lisa Fager Bediako, Congressional Black Caucus Foundation/ Positive Justice Project, United States [from 33:10]
Video produced by Nicholas Feustel, georgetownmedia.de, for the HIV Justice Network
HIV prosecutions: global ranking (AIDS 2012)
Presented by Edwin J Bernard at 19th International AIDS Conference, Washington DC, July 22-27, 2012.
Video produced by Nicholas Feustel, georgetownmedia.de, for the HIV Justice Network
Introduction by Susan Timberlake [00:00]
Introduction by Laurel Sprague [01:54]
Start of Edwin J Bernard’s presentation [03:33]
Slide 01: Overview [04:40]
Slide 02: Global Commission on HIV and the Law [05:19]
Slide 03: Case Study: Take a Test, Risk Arrest [05:21]
Slide 04: Global Overview of Laws and Prosecutions [08:29]
Slide 05: Law Enforcement: Top 30 Jurisdictions [09:47]
Slide 06: Law Enforcement Hot Spots [10:58]
Slide 07: Top 15 Global HIV Criminalization Hot Spots [11:19]
Slide 08: Focus On Africa [12:09]
Slide 09: Focus On Africa: Positive Developments [13:08]
Slide 10: Focus On Europe and Central Asia [14:10]
Slide 11: Focus On Europe and Central Africa: Positive Developments [15:18]
Slide 12: Oslo Declaration on HIV Criminalisation [17:45]
Updated abstract based on final data
Criminal prosecutions for HIV non-disclosure, exposure and transmission: overview and updated global ranking
E.J. Bernard (HIV Justice Network, Berlin, Germany/ Criminal HIV Transmission (blog), Brighton, UK)
M. Nyambe (Global Network of People Living with HIV, GNP+, Amsterdam, Netherlands)
Background: Many jurisdictions continue to inappropriately prosecute people living with HIV (PLHIV) for non-disclosure of HIV-positive status, alleged exposure and non-intentional transmission. Although most HIV-related criminal cases are framed by prosecutors and the media as being cases of ´deliberate´ HIV transmission, the vast majority have involved neither malicious intent nor has transmission actually occurred or the route of transmission been adequately proven.
Methods: This global overview of HIV-related criminal laws and prosecutions is based on latest data from GNP+ Global Criminalisation Scan and media reports collated on criminalhivtransmission.blogspot.com. Final ranking will be based on the total number of prosecutions by July 1 2012 per 1000 PLHIV.
Results: At least 66 countries have HIV-specific criminal laws and at least 47 countries have used HIV-specific (n=20) or general laws to prosecute HIV non-disclosure, exposure or transmission. Despite growing national and international advocacy, prosecutions have not diminished, particularly in high-income countries, with the greatest numbers in North America. Since 2010, prosecutions have taken place in Belgium and Republic of Congo for the first time. In 2011, although HIV-specific laws were suspended in Denmark and rejected in Guyana, Romania passed a new HIV-specific criminal statute. In Africa, the continent with the most HIV-specific criminal laws but with few known prosecutions, Guinea, Togo and Senegal have revised their existing HIV-related legislation or adopted new legislation in line with UNAIDS guidance.
Conclusions: Given the lack or inadequacy of systems to track HIV-related prosecutions in most places, it is not possible to determine the actual number of prosecutions for every country in the world. These data should be considered illustrative of a more widespread, but generally undocumented, use of criminal law against people with HIV. Improved monitoring of laws, law enforcement, and access to justice is still required to fully understand impact on HIV response and PLHIV.
HIV Criminalisation Discourages HIV Testing, Creates Disabling and Uncertain Legal Environment for People with HIV in U.S. (Press Release)
The SERO Project: National Criminalization Survey
Washington, D.C. July 25, 2012
Preliminary data from the Sero Project’s ground-breaking survey of more than two thousand people living with HIV (PLHIV) in the U.S., released July 25, 2012, at the International AIDS Conference in Washington, D.C., reveals HIV criminalization is a significant deterrent to testing, accessing care and treatment for HIV:
• One quarter of respondents (25.1%) indicated they knew one or more people who told them they did not want to get tested for HIV because of fear of prosecution if they tested positive; more than 5% indicated that “many people” have told them this.
• Almost half of respondents (49.6%) felt it could be reasonable for someone to avoid testing for HIV, and 41.6% felt it could be reasonable to avoid HIV treatment for fear of prosecution.
“We expected the survey to show criminalization is a deterrent to HIV testing, but these findings indicate it is an even bigger obstacle than previously believed,” said Laurel Sprague, the project’s principal investigator who is also Sero’s Research Director. “The community’s response has been tremendous; it is obvious there is tremendous concern about HIV criminalization. I look forward to further analysis of the survey responses, including of those who are HIV negative or do not know their HIV status, which will be released in a report later this year.”
Sean Strub, Sero’s executive director and the founder of POZ Magazine, said “This is a wake-up call for public health officials and policymakers who have failed to recognize the extent to which HIV criminalization hampers efforts to combat AIDS. We’ve known for years that HIV criminal statutes do not achieve their intended purpose, to reduce HIV transmission. Now it is clear that these statutes are driving the epidemic, because of how they fuel stigma and discourage HIV testing and accessing the treatment that reduces transmission.”
Strub and Sprague are both long‐term HIV survivors and advocates who have championed self‐empowerment for people with HIV to combat stigma and improve health outcomes for themselves and their communities. The 2,076 people living with HIV in the United States who responded to the Sero survey also painted a disturbing picture of a disabling legal environment for people with HIV:
• More than a third (38.4%) reported they worried a few times or frequently about being falsely accused of not disclosing their HIV positive status; amongst transgendered persons that cigure rose to 60%.
• Respondents in the Midwest (45.9%) and South (40.9%) were more likely to express fear about false accusations than those in the West (35.1%) and Northeast (32.3%).
• Just less than two‐thirds (62.7%) of respondents were not certain whether or not their state required people with HIV to disclose their status to a partner before having sex, with the uncertainty highest in the Northeast (72.4%) and West (71.3%) and South (61.6%) and lowest in the Midwest (40.4%).
• There were significant regional differences amongst those reporting that they were informed about potential criminal liability at the time of their diagnosis. The highest rate was in the Midwest (28.8%) and South (14.8%) and lower rates were seen in the West (7.5%) and Northeast (4.1%).
• Respondents also indicated a lack of clarity about what could subject them to prosecution (47.7% “not clear”, 30% “somewhat clear” and 22.3% “completely clear”). Men reported a greater lack of clarity on this point.
The top reasons cited for disclosure were that it is “the right thing to do”, “to have honest relationships” and “not cause harm to another” or “to protect their partner”, not that it was required by law or because of fear of criminal prosecution. More than 8 in 10 PLHIV in the study said that they believe that sexual partners share equally in the responsibility for HIV prevention.
The detailed survey, which required 20 to 25 minutes to complete, was conducted online in June and July of 2012, and is the first in‐depth examination of the effect of HIV criminalization on people with HIV and one of the largest surveys of people in the U.S. with HIV ever conducted. Further results and analysis will be released later in the year.
The Sero Project is a not‐for‐profit human rights organization combating HIV‐related stigma by working to end inappropriate criminal prosecutions of people with HIV for non‐disclosure of their HIV status, potential or perceived HIV exposure or HIV transmission.
The Sero Project is supported by the Elton John AIDS Foundation, Broadway Cares/Equity Fights AIDS and the H. van Ameringen Foundation as well as many individual supporters. Special thanks to POZ Magazine, the North American regional affiliate of the Global Network of People Living with HIV/AIDS, the Positive Women’s Network, The Body and other community resources that assisted in survey promotion.
Special thanks also to Thom Riehle, Ian Anderson, Edwin Bernard, Regan Hofmann, Cecilia Chung, Julie Davids, Mark S. King and Alex Garner for their expertise and support.
Download the press release here. More detailed preliminary data can be downloaded here.
HIV Criminalization – An Epidemic Of Ignorance? Press Conference at AIDS 2012 (Press Release)
For Immediate Release
****MEDIA ADVISORY****
Press Conference: 10am, Wednesday 25th July, Press Conference Room 2
HIV Criminalization – An Epidemic Of Ignorance?
Laws and prosecutions that single out people with living with HIV are ineffective, counterproductive and unjust.
As delegates from around the world meet this week in Washington DC at AIDS 2012 to discuss how to “end AIDS” through the application of the latest scientific advances, laws and policies based on stigma and ignorance are not only creating major barriers to prevention, testing, care and treatment, but also seriously violating the human rights of people living with HIV.
This is especially true in the United States, where 36 states and 2 territories have HIV-specific criminal statutes that single out people living with HIV as potential criminals. However, this growing epidemic of bad laws and prosecutions is a global problem that requires an internationally co-ordinated and concerted effort to overcome.
Come meet people living with HIV who have been involved in both sides of a prosecution as well as some of the experts and advocates who are part of a growing global movement, supported by UNAIDS and the UNDP-led Global Commission on HIV and the Law, working to ensure that the application of criminal laws, if any, to people living with HIV is fair, consistent, restrained, proportionate and appropriate, and serves justice without jeopardising public health objectives and fundamental human rights.
As well as two very personal stories that embody just how HIV criminalization is fundamentally wrong-headed and unjust, presentations will include:
· New data on the Top 15 global HIV criminalization hot-spots
· Preliminary results of SERO criminalization survey highlighting the devastating impact of HIV criminalization in the United States
· The Positive Justice Project’s consensus statement and the latest information on Congresswoman Barbara Lee’s REPEAL HIV Discrimination Act
Hosted by (in alphabetical order):
· Global Network of People Living with HIV (GNP+), Netherlands
· HIV Justice Network, United Kingdom/Germany
· INA (Maori, Indigenous & South Pacific) HIV/AIDS Foundation, New Zealand
· The SERO Project, United States
· Terrence Higgins Trust, United Kingdom
· UNAIDS, Switzerland
Chaired by Paul de Lay, Deputy Executive Director, UNAIDS, Switzerland, speakers will include:
· Nick Rhoades, HIV criminalization survivor, United States
· Marama Pala, former complainant, New Zealand
· Edwin J Bernard, Co-ordinator, HIV Justice Network, and Consultant, GNP+ Global Criminalisation Scan
· Laurel Sprague, Research Director – SERO, United States
· Lisa Fager Bediako, Congressional Black Caucus Foundation/ Positive Justice Project, United States.
A question and answer session will follow. The press conference will end at 10.45am.
To arrange interviews with any of the speakers please contact Edwin J Bernard via email or mobile.
Media Contact
Edwin J Bernard, Co-ordinator, HIV Justice Network
Mobile: +1.347.681.8411
Email: edwin(at)hivjustice.net