US: Hillary Clinton: "We should call on states to reform outdated and stigmatizing HIV criminalization laws."

Yesterday, at Nancy Reagan’s funeral, I said something inaccurate when speaking about the Reagans’ record on HIV and AIDS. Since then, I’ve heard from countless people who were devastated by the loss of friends and loved ones, and hurt and disappointed by what I said. As someone who has also lost friends and loved ones to AIDS, I understand why. I made a mistake, plain and simple.

I want to use this opportunity to talk not only about where we’ve come from, but where we must go in the fight against HIV and AIDS.

To be clear, the Reagans did not start a national conversation about HIV and AIDS. That distinction belongs to generations of brave lesbian, gay, bisexual, and transgender people, along with straight allies, who started not just a conversation but a movement that continues to this day.

The AIDS crisis in America began as a quiet, deadly epidemic. Because of discrimination and disregard, it remained that way for far too long. When many in positions of power turned a blind eye, it was groups like ACT UP, Gay Men’s Health Crisis and others that came forward to shatter the silence — because as they reminded us again and again, Silence = Death. They organized and marched, held die-ins on the steps of city halls and vigils in the streets. They fought alongside a few courageous voices in Washington, like U.S. Representative Henry Waxman, who spoke out from the floor of Congress.

Then there were all the people whose names we don’t often hear today — the unsung heroes who fought on the front lines of the crisis, from hospital wards and bedsides, some with their last breath. Slowly, too slowly, ignorance was crowded out by information. People who had once closed their eyes opened their hearts.

If not for those advocates, activists, and ordinary, heroic people, we would not be where we are in preventing and treating HIV and AIDS. Their courage — and their refusal to accept silence as the status quo — saved lives.

We’ve come a long way. But we still have work to do to eradicate this disease for good and to erase the stigma that is an echo of a shameful and painful period in our country’s history.

This issue matters to me deeply. And I’ve always tried to do my part in the fight against this disease, and the stigma and pain that accompanies it. At the 1992 Democratic National Convention, when my husband accepted the nomination for president, we marked a break with the past by having two HIV-positive speakers — the first time that ever happened at a national convention. As First Lady, I brought together world leaders to strategize and coordinate efforts to take on HIV and AIDS around the world. In the Senate, I put forward legislation to expand global AIDS research and assistance and to increase prevention and education, and I proudly voted for the creation of PEPFAR and to defend and protect the Ryan White Act. And as secretary of state, I launched a campaign to usher in an AIDS-free generation through prevention and treatment, targeting the populations at greatest risk of contracting HIV.

The AIDS crisis looks very different today. There are more options for treatment and prevention than ever before. More people with HIV are leading full and happy lives. But HIV and AIDS are still with us. They continue to disproportionately impact communities of color, transgender people, young people and gay and bisexual men. There are still 1.2 million people living with HIV in the United States today, with about 50,000 people newly diagnosed each year. In Sub-Saharan Africa, almost 60 percent of people with HIV are women and girls. Even though the tools exist to end this epidemic once and for all, there are still far too many people dying today.

That is absolutely inexcusable.

I believe there’s even more we can — and must — do together. For starters, let’s continue to increase HIV and AIDS research and invest in the promising innovations that research is producing. Medications like PrEP are proving effective in preventing HIV infection; we should expand access to that drug for everyone, including at-risk populations. We should call on Republican governors to put people’s health and well-being ahead of politics and extend Medicaid, which would provide health care to those with HIV and AIDS.

We should call on states to reform outdated and stigmatizing HIV criminalization laws. We should increase global funding for HIV and AIDS prevention and treatment. And we should cap out-of-pocket expenses and drug costs—and hold companies like Turing and Valeant accountable when they attempt to gouge patients by jacking up the price of lifesaving medications.

We’re still surrounded by memories of loved ones lost and lives cut short. But we’re also surrounded by survivors who are fighting harder than ever. We owe it to them and to future generations to continue that fight together. For the first time, an AIDS-free generation is in sight. As president, I promise you that I will not let up until we reach that goal. We will not leave anyone behind.

US: Powerful new report on impact of criminal justice system on LGBT people highlights unjust HIV-related prosecutions; lawmaker calls for repeal of Michigan's 'outdated' HIV-specific criminal law

A new report from the independent Movement Advancement Project in Washington DC is shining a light on the plight of LGBT people caught up in the nation’s criminal justice system — and it is not pretty.

“It used to be a crime to be LGBT in the United States, and while police are no longer raiding gay bars, LGBT people, especially LGBT people of color, are still disproportionately pushed into the criminal justice system. They are treated unfairly within the system and in correctional settings, and face extraordinary challenges in rebuilding their lives,” said Ineke Mushovic, Executive Director of MAP.

The report finds that twice as many people incarcerated identify as LGBT or gender non-conforming than Americans who identify as such. The numbers are even more skewed in relation to juveniles, the report found.

“I’m glad that MAP is bringing to light the critical issue of LGBT people in the criminal justice system,” State Rep. Jon Hoadley, D-Kalamazoo, said in an interview with BTL. Hoadley is one of two openly gay state lawmakers working in Lansing. “This report shows that our work is not done.”

He noted that Michigan continues to have laws which are used to discriminate against members of the LGBT and HIV affected communities. He noted the child welfare system in the state continues to foster discrimination and noted Michigan’s HIV-specific criminal laws. Michigan adopted a new law last year which allows private, religious adoption agencies to refuse to help otherwise qualified adoptive parents based on “sincerely held religious beliefs.”

State Sen. Steve Bieda, D-Warren, said the report was important. He’s been working with the GOP majority to address criminal justice reform in the state as the only Democrat on the Senate Judiciary Committee.

“We need to make sure that justice is blind,” Bieda said in a phone interview. “We need to make sure that justice is actually just.”

He called for a repeal of Michigan’s HIV-specific criminal law, which he called “outdated,” and also said the state needs to remove obsolete laws that are no longer enforceable because they have been declared unconstitutional.

“When we’re talking about reforming a complexing system, like this, you need a yes and strategy,” said Hoadley. He called on lawmakers to repeal obsolete laws as well as laws — such as the gross indecency laws — which criminalize otherwise consensual sexual activity between adults.

Bieda said he would like to have representatives of MAP come to a Senate Judiciary Committee to brief state lawmakers on the findings of the report and possible solutions. Hoadley applauded that idea.

“This would be a great opportunity to have a joint committee meeting,” between House and Senate Judiciary Committees, he said. “We could also have policy meetings on this.”

The chair of the Senate Judiciary Committee, State Sen. Rick Jones, R-Grand Ledge, said the Senate cannot solve all the issues with the criminal justice system but did call for more training by law enforcement related to LGBT related issues. He’s a former county sheriff.

“I also support clean slate legislation,” Jones said. Those laws would allow those convicted of non-violent crimes to wipe their records clean after a set amount of time.

Hoadley said Jones’ idea was certainly on track to addressing reintegration of those convicted of crimes and sentenced to prison into society.

“We have to really think about how we integrate people into society after their rehabilitation,” he said. He discussed working with a person living with HIV who was convicted under Michigan’s HIV-specific law. That person was being forced to disclose their HIV status as a result of having to disclose the felony conviction to potential employers. It significantly limited that person’s job prospects.

MAP officials were pleased to hear Michigan lawmakers were taking the report seriously.

“A goal of this report is to lift up the ways in which LGBT people interact with the criminal justice system to ensure comprehensive reforms,” said Naomi Goldberg, Policy Analyst for the Movement Advancement Project. “Legislative efforts to reduce recidivism rates, such as clean slate legislation combined with vital protections against discrimination, would greatly improve the lives of formerly incarcerated LGBT people. And training, ongoing education and improved procedures for law enforcement, court staff, prison and staff, and probation and parole officers would greatly improve the safety of LGBT people.”

Register now for ARASA’s online course on HIV criminalisation; deadline March 8th

Applications are now invited for participation in the AIDS and Rights Alliance for Southern Africa (ARASA) 2016 online training course on the criminalisation of HIV transmission, exposure and non-disclosure.

Civil society, policymakers and service providers – including health care providers and law enforcement officials – working in Africa are eligible for the course, which will last for six weeks from 14 March 2016 to 22 April 2016, and require four hours’ commitment per week.

The deadline for applications is 8th March 2016.

More details below and on ARASA’s website.

Download the full announcement here.

ABOUT THE COURSE

The criminalisation of HIV transmission, exposure and non-disclosure, which is often referred to as ‘HIV criminalisation’, is the unjust application of criminal law based solely on HIV status – either by enacting and applying HIV-specific criminal laws, or by applying general criminal laws exclusively or disproportionately against people with HIV.

Law makers who try to enact HIV-specific laws to criminalise HIV transmission are often driven by public pressure to be seen to be doing something about HIV in their country without stopping to consider the effects of HIV criminalisation on the spread of HIV.

Human rights experts argue that most countries already have criminal laws, such as the laws against assault with intent to cause grievous bodily harm, that can be used to deal with intentional transmission of HIV and therefore there is no need to create new laws to deal specifically with HIV.

This online course will introduce participants to information about the criminalisation of HIV transmission, exposure and non-disclosure, the negative impact it has on the human rights of people living with HIV and key populations and on universal access to HIV prevention, treatment, care and support. The focus is on providing knowledge and skills so that participants can identify harmful HIV-specific transmission, exposure and non-disclosure laws and advocate for the removal of these laws.

COURSE OUTCOMES

After taking the course, students will be able to:

  • Understand what criminalisation of HIV transmission, exposure and non- disclosure is and the difference between transmission, exposure and non- disclosure
  • Identify the links between human rights, universal access to HIV prevention, treatment, care and support, and the negative impact of criminalisation of HIV transmission, exposure and non-disclosure
  • Understand the disproportionate impact of criminalisation on women and key populations
  • Understand international and regional guidance on criminalisation of HIV transmission, exposure and non-disclosure and be aware of model laws and other instruments that can be used as advocacy tools to advocate against HIV criminalisation
  • Advocate for laws that do not criminalise HIV transmission, exposure and non- disclosure and respect the rights of people living with HIV and promote universal access or for the repeal or amendment of laws that do criminalise.

WHO MAY APPLY?

In the selection of participants preference will be given to persons who:

  • Are staff members of civil society organisations working on HIV, TB and human rights in African countries;
  • Are fluent in English;
  • Have existing skills and experience in human rights, TB, HIV and/or Sexual and Reproductive Health Rights (SRHR);
  • Have daily access to the internet as well as access to a computer;
  • Are committed to participating fully in all the elements of the short course and carrying out training and advocacy for increased access to HIV and TB servicesfor prisoners; and
  • Are committed to promoting a rights-based response to HIV and TB in their own countries and in the region, and to engage in regional collaboration for advocacy.

HOW TO APPLY

Send us:

  • A one page letter of motivation, setting out why you feel that you would benefit from participating in the short course and outlining how you will use the skills acquired during the course;
  • Your resume / CV; and
  • A letter of support from the organisation you are currently working with / affiliated to.

DEADLINE FOR APPLICATIONS

All applications must be received by no later than close of business 8 March 2016. Kindly note that applications received after the closing date will not be considered.

Application should be submitted by email to courses@arasa.info (and copy Jacob Segale (jacob@arasa.info) and Nthabiseng Mokoena (nthabiseng@arasa.info)). Successful applicants will be notified by no later than 11 March 2016. Should you not receive any feedback from us by 14 March 2016, kindly consider your application to have been unsuccessful.

ABOUT ARASA

Established in 2002, ARASA is a regional partnership of 89 non-governmental organisations (NGOs) working together to promote a human rights-based response to HIV and TB in Southern and East Africa, through capacity strengthening and advocacy.

ARASA’s purpose is to promote the rule of law and respect for human rights to safeguard the health status of all, especially of people living with HIV and TB and key populations at higher risk of HIV and TB, including lesbian, gay, bisexual, transgender and intersex (LGBTI) people, sex workers, people who use drugs and prisoners. ARASA’s overall objective is to ensure that legal, policy and social environments exist in Southern and East Africa (18 countries) in which people living with HIV and TB and key populations most at risk (prisoners, LGBTI persons, sex workers and people who use drugs) access acceptable, affordable and quality sexual and reproductive health and rights, HIV and TB prevention, treatment and care services.

US: Lambda Legal’s Fair Courts Project provides training for judges, court staff and attorneys nationwide on LGBT cultural competency and bias related to gender, sexuality and HIV

Through Lambda Legal’s Fair Courts Project, we provide training for judges, court staff and attorneys nationwide on LGBT cultural competency and bias related to gender and sexuality. These trainings are part of our work to increase access to justice; and we have evidence that they are making a difference in the lives of those working in the courts and those interfacing with the courts as defendants, plaintiffs, jurors and witnesses.

Here are 3 reasons we are training judges, court staff and attorneys nationwide:

1.       Cultural competency and anti-bias education affirms the dignity of LGBT court users and court users living with HIV. Most judges, attorneys and court staff want to treat every court user with respect and dignity, and all court officers have an ethical duty to treat everyone in the courtroom fairly and respectfully, but many lack the knowledge to do so. Others may treat court users with disrespect or discrimination because of deeply held, but often unconscious biases. Still others may feel justified in their explicit bias towards LGBT people or people living with HIV. Our trainings create a more fair, respectful and just court experience for litigants, jurors and witnesses by educating judges, attorneys and court staff on how to address individuals with correct names and pronouns, how to question, examine and interrupt some of their biases about gender and sexuality, and how to relate others’ identities and experiences which may be very different from their own to their common shared humanity.

2.      Cultural competency and anti-bias education improves the lives and work environments of judges, court staff and attorneys. When bias is reduced in the courthouse, working conditions are improved for judges, court staff and attorneys who are LGBT, intersex, or living with HIV. We also address intersecting forms of discrimination that affect people of color, indigenous people and people with disabilities. Our trainings can also impact participants’ lives on a personal level. After a recent training for criminal court judges and staff, an older participant told us that she had always felt as if she was an “alien” and that there was no one else in the world like her until the day of the training when she learned the word “intersex” and realized that word described her and others like her. She went on to say that this one training had changed her life and ended decades of shame, confusion and secrecy. Many other participants have said that our trainings helped them to understand and respectfully relate to LGBT family, friends and co-workers.

3.      Cultural competency and anti-bias education strengthens the judicial system. Lambda Legal’s 2015 survey of the experiences of LGBT people and people living with HIV in court, Protected and Served?, found that only 27% of transgender people and 33% of LGBT people of color who responded said they “trust the courts.” One likely reason for mistrust of the judicial system is the implicit and explicit bias of judges, attorneys and court staff that negatively impacts the experience of court users in myriad ways. Bias and lack of cultural competency (“cultural competency” is a term meaning reasonable familiarity with the experiences, language and norms of a cultural group) can lead to improper assumptions and stereotypes, disrespectful and discriminatory conduct. Our training programs educate court personnel about LGBT people and people living with HIV in order to reduce harmful bias, thereby increasing access to justice in the courts and improving public confidence because of more respectful, humane and fair treatment.

The Fair Courts Project is excited to organize trainings of trainers in cities around the U.S. in 2016 in order to replicate our judicial trainings in many more jurisdictions.

For more information on Lambda Legal’s Fair Courts Project please click here. To learn about your rights in court visit our new Know Your Rights in Court hub here. If you have experienced discrimination as a court user please contact our Help Desk at 866-542-8336.

UK: Law Commission considers HIV criminalisation in great depth, but recommends no change for HIV/STI prosecutions in England & Wales, pending a wider review

Following a scoping consultation which ran from autumn 2014 to spring 2015, the Law Commission (of England and Wales) has now published its report containing their final recommendations to the UK Government.

It recommends the adoption of a modified version of a 1998 draft Bill to replace the outdated Offences Against the Person Act 1861.

However, whereas the 1998 Bill only criminalised intentional disease transmission, their recommendation is to keep the existing law relating to HIV and other serious diseases ((based on Dica and Konzani and clarified through prosecutorial policy and guidelines) which criminalises reckless as well as intentional disease transmission, pending a wider review.

Both in the scoping consultation paper and in this report, we have considered the criminalisation of disease transmission at great length. Many consultees supported fundamental reform of the law in this area. However, we conclude that the issues were more complex than time or space allowed without delaying the main aim of reforming the law of offences against the person. For this reason, we suggest modifications to the draft Bill to preserve the present position pending a wider review involving more input from healthcare professionals and bodies.

The full report, (chapter six: ‘transmission of disease’ is excerpted in full below), includes a detailed discussion of their proposals and the responses of 35 concerned stakeholders (most of them experts in law, public health and human rights. The HIV Justice Network was one of them, and our opinions are quoted throughout.)

The entire report is of interest not just to those working on this issue in England & Wales, but globally.  It rehearses, in great detail, nearly all of the arguments for and against HIV (and other STI) prosecutions, and finds that “there is a strong body of opinion, especially in the medical profession and groups concerned with HIV and sexually transmissible infections, that the transmission of these diseases should never be criminal unless done intentionally.”

The report helpfully summarises the five main arguments against overly broad HIV criminalisation:

(1)  an offence of reckless transmission encourages people to choose not to be tested, so as not to have the awareness of risk that might constitute recklessness;

(2)  it discourages openness with (and by) medical professionals, because they may have to give evidence against their patients;

(3)  it encourages people to think that disclosure of HIV status is always a duty, and that if a potential partner has not mentioned his or her status then he or she is not infected;

(4)  because of the difficulty of proving transmission, the existence of the offence leads to very wide-ranging and intrusive investigations affecting a great many people, out of all proportion to the small number who will be found deserving of prosecution; and

(5)  the whole topic of HIV/AIDS is affected by an atmosphere of fear (often irrationally so), and there is still an undesirable stigma against people.

Nevertheless, although the report states that “it would be preferable to revert to the law as it stood in 1998” when prosecutions were not possible and to use the draft 1998 Bill as it stands (which would only criminalise the intentional transmisison of disease), it comes to a more conservative conclusion.

The discussion of this issue has almost exclusively concerned the transmission of disease by consensual sexual intercourse, and the transmission of HIV in particular. (Also, most of the evidence for the harmful effects of criminalisation is drawn from countries where there are specific offences concerned with HIV and STIs, and may not be relevant to the use of general offences of causing injury.) The same reasoning may well not apply to other diseases and other means of transmitting them, but the draft Bill excludes disease as a whole.

For these reasons, on the evidence we have we do not feel justified in recommending a change to the position in existing law, in which the reckless transmission of disease is in principle included in an offence of causing harm. If there is to be a change, this should follow a wider review which compares the position in different countries and gives full consideration to the transmission of diseases other than by sexual means.

Of note, and of global relevance, following a great deal of discussion (and a broad range of consultation responses) regarding whether not to create an HIV/STI-specific law and/or broaden the scope of the current law to include non-disclosure and/or potential or perceived exposure, the Law Commission is clear.

We do not recommend the creation of specific offences concerned with disease transmission, either in relation to disease in general or in relation to HIV and STIs in particular: this too would require a wider review of all the available evidence. Nor do we recommend an offence of putting a person in danger of contracting a disease, or an offence of failing to disclose an infection to a sexual partner.

Law Commission Scoping Report: TRANSMISSION OF DISEASE (November 2015)

New IAPAC guidelines to achieving 90-90-90 targets recommend ending HIV criminalisation

New guidelines from the International Association of Providers of AIDS Care (IAPAC) are the first to highlight that HIV criminalisation is a critical barrier to optimising the HIV care continuum.

Currently only half of people living with HIV globally are aware of their status. Of the remaining 50% many are not yet engaged in care, receiving antiretroviral therapy (ART) in a timely manner or – the ultimate goal of HIV treatment and prevention – achieving sustained viral suppression.

These new guidelines are the first to include HIV criminalisation as one of eight key critical barriers that prevent people living with HIV from enjoying both the therapeutic and preventive effects of ART.

Screenshot 2015-11-06 11.49.50In many settings, optimizing the HIV care environment may be the most important action to ensure that there are meaningful increases in the number of people who are tested for HIV, linked to care, started on ART if diagnosed to be HIV positive, and assisted to achieve and maintain long-term viral suppression. Overcoming the legal, social, environmental, and structural barriers that limit access to the full range of services across the HIV care continuum requires multistakeholder engagement, diversified and inclusive strategies, and innovative approaches. Addressing laws that criminalize the conduct of key populations and supporting interventions that reduce HIV-related stigma and discrimination are also critically important. People living with HIV also require support through peer counseling, education, and navigation mechanisms, and their self-management skills reinforced by strengthening HIV literacy across the continuum of care.

The full HIV criminalisation recommendation (Recommendation 2) is below.

  • Recommendation 2: Laws that criminalize the conduct of PLHIV based on perceived exposure to HIV, and without any evidence of intent to do harm, are not recommended and should be repealed where they have been enacted. (A IV)

Numerous countries have enacted laws that criminalize behaviors associated with HIV exposure, many of which pose a low or negligible HIV transmission risk. No differences in behavior have been noted between settings that enact such laws and those that do not. Many of these laws do not take into account measures that reduce HIV transmissibility, including condom use, and were enacted before the preventive benefit of ART or antiretroviral (ARV)-based preexposure prophylaxis (PrEP) was fully characterized. Most PLHIV who know their status take steps to prevent transmitting HIV to others.HIV-specific laws thus primarily exacerbate HIV-related stigma and decrease HIV service uptake.

IAPAC Guidelines for Optimizing the HIV Care Continuum for Adults and Adolescents

Canada: New film explores the impact of using sexual assault law to prosecute HIV non-disclosure

This week sees the release of an important new short film from the Canadian HIV/AIDS Legal Network.

Consent: HIV non-disclosure and sexual assault law interrogates whether criminalising HIV non-disclosure does what the Supreme Court of Canada believes it does – protect sexual autonomy and dignity – or whether, in fact, it does injustice both to individuals charged and to the Canadian criminal justice system’s approach to sexual violence.

Produced together with Goldelox Productions, with whom the Legal Network also collaborated on their powerful 2012 documentary’ Positive Women: Exposing Injustice, this 28-minute film features eight experts in HIV, sexual assault and law whose commentary raises many questions about HIV-related legal developments in Canada.

At a time when society seems to be taking the prevalence of sexual

violence and rape culture more seriously, this film dares to ask some

difficult questions about its limits in the law. The law of sexual

assault is intended to protect women’s sexual autonomy, equality

and dignity, yet as applied with respect to alleged HIV non-disclosure,

these values are not necessarily being advanced. Through expert

testimonies, Consent shines a light on the systemic obstacles women

face in disclosing their HIV status, points to the dangerous health

and human rights outcomes of applying such a harsh charge as

aggravated sexual assault to HIV non-disclosure, and makes the

argument that the law needs to better protect those who are living

with and vulnerable to HIV. Consent demonstrates that advocacy

efforts opposing the overly broad criminalization of HIV non-disclosure

must address the use of sexual assault law and that such efforts must

do so alongside feminist allies.

From: http://www.consentfilm.org/about-the-film/

The Canadian HIV/AIDS Legal Network has for some time been exploring the implications of using sexual assault law to prosecute HIV non-disclosure cases, given the marked differences between the types of conduct that are typically referred to as sexual assault (including rape) and HIV non-disclosure cases.

In April 2014, the Legal Network convened leading feminist scholars, front-line workers, activists and legal experts for a ground-breaking dialogue on the (mis)use of sexual assault laws in cases of HIV non-disclosure. Consent: HIV non-disclosure and sexual assault law was filmed during this convening.

Their analysis demonstrates that the use of sexual assault law in the HIV non-disclosure context – where the sexual activity is consensual other than the non-disclosure – is a poor fit and can ultimately have a detrimental impact on sexual assault law as a tool to advance gender equality and renounce gender-based violence.

The Consent website ( in English / in French ) also lists future screenings across Canada, which will be accompanied by panels and workshops, as part of an ongoing strategy to build up allies among women’s rights advocates for the longer-term work.

A discussion guide will also soon be available.