US: REPEAL HIV Discrimination Act reintroduced by Congresswoman Barbara Lee even as some US states propose new HIV-specific criminal laws

The past month or so has seen a huge amount of activity around overly broad HIV criminalisation in the United States, culminating the reintroduction of the REPEAL HIV Discrimination Act by Congresswoman Barbara Lee.

As well as on-going arrests and prosecutions of individuals for alleged non-disclosure (and some excellent reporting on certain cases, such as that of Michael ‘Tiger Mandingo’ Johnson in Missouri or of two new cases on the same day in Michigan) new problematic HIV-related criminal laws have been proposed in Alabama, Missouri, Rhode Island and Texas.

Fortunately, most of these bills have been stopped due to rapid responses from well networked grass roots advocates (many of whom are connected via the Sero Project’s listserv) as well as state and national HIV legal and policy organisations, including the Positive Justice Project.

REPEAL HIV Discrimination Act

On March 24th, Congresswoman Barbara Lee reintroduced a new iteration of the REPEAL HIV Discrimination Act (H.R.1586), “to modernize laws, and eliminate discrimination, with respect to people living with HIV/AIDS, and for other purposes”.

The full text of the bill can be found here.

The last time the REPEAL Act was introduced, in 2013, it had 45 co-sponsors before dying in committee. The first iteration, introduced in 2011, achieved 41 co-sponsors.

As of April 15th, the 2015 iteration has three co-sponsors, two Democrats – Jim McDermott and Adam B Schiff – and one Republican, Ileana Ros-Lehtinen.

As in 2011 and 2013, the bill has been referred to three House Committees: Judiciary, Energy and Commerce, and Armed Services.

Back in 2013, the Positive Justice Project produced an excellent toolkit that provides advocates with resources which “can be used in outreach efforts, including a guide for letter writing campaigns, calling your representative’s state and Washington D.C. offices, or meeting with your representative or the representative’s legislative staff.”

If you’re in the US, you can also show Congress that you support this bill at: https://www.popvox.com/bills/us/114/hr1586

Alabama

On April 1, 2015 the House Judiciary Committee of the Alabama Legislature held a hearing on HB 50, proposed by Democrat Representative Juandalynn Givan, that would increase the penalty for exposure or transmission of a sexually transmitted infection from a class C misdemeanour (punishable by up to 3 months in jail and a $500 fine) to a class C felony (punishable by up to 10 years in prison).

Representative Givan was apparently inspired to propose the bill after reading about a pastor in Montgomery, Alabama, who admitted in an October 2014 sermon that he was living with HIV and engaging in sex with women in his congregation without having disclosed his status. (He wasn’t prosecuted, but appears to have lost his job, as of the last news report in December 2014.)

In an interview in March 2015, she told AL.com that Alabama is one of only 16 states in the nation where it is a misdemeanour rather than a felony to ‘knowingly expose another person to a sexually transmitted disease’.

“What this bill is about is responsibility and accountability…The aim of this bill is not to punish those people with a sexually transmitted disease but to hold those people accountable,” that knowingly transmit dangerous illnesses to other people.

Some of the testimony before the House Judiciary Committee – most of it against the bill – is reported (rather poorly) in the Alabama Political Reporter.

Before the hearing began, the Positive Justice Project Steering Committee sent a powerful letter to the members of the House Judiciary Committee, voicing their strong opposition to the bill.

Medical experts and public health officials agree that criminalizing the conduct of people living with HIV does nothing to decrease the rates of infection, and may actually deter conduct and decisions that reduce disease transmission. Consequently, the American Medical Association, HIVMA, ANAC, and NASTAD have issued statements urging an end to the criminalization of HIV and other infectious diseases. Notably, the U.S. Department of Justice recently issued “Best Practices Guide to Reform HIV-Specific Criminal Laws,” which counsels states to end felony prosecutions of people living with HIV as contrary to the relevant science and national HIV prevention goals.

The bill remains with the House Judiciary Committee, but seems unlikely to be passed given that there are no co-sponsors.

Missouri

On March 10th, Republican Representative Travis Fitzwater introduced HB 1181, which proposed adding ‘spitting whilst HIV-positive’ to Missouri’s (already overly draconian) current HIV-specific criminal statute.

It is unclear what caused Rep Fitzwater to introduce the bill. However, advocacy against it was swift, with the local chapters of both ACLU and Human Rights Campaign, and Missouri-based HIV advocate, Aaron Laxton, planning to testify against it within days of it being introduced.

Although the bill was scheduled for a public hearing before the Civil and Criminal Proceedings Committee on April 7th, the community’s quick response meant the bill was not heard. According to Laxton, “within a matter of hours every member of the Civil and Criminal Proceedings Committee has received calls, emails, tweets and messages from many people” against the bill.

The proposed bill now appears to be dead, and advocacy in Missouri is now focused on modernising the existing HIV-specific law (which includes criminalising biting whilst HIV-positive) to take into account the latest science around HIV risk and harm.

Rhode Island

On February 24th, Republican Representative Robert Nardolillo introduced a new HIV-specific criminal law (H 5245) that would have criminalised HIV non-disclosure in the state for the first time.

In an interview with Zack Ford on thinkprogress.org, Rep Nardolillo said that as a survivor of sexual abuse he was surprised to discover that Rhode Island law does not allow for harsh enough penalties if HIV is passed on during a sexual assault.

However, although his proposed bill created a felony when someone with HIV “forcibly engages in sexual intercourse,” it also criminalised when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”

The entire hearing before the Rhode Island House Judiciary Committee was captured on video, and an excellent blog post by Steve Ahlquist on RIFuture.org highlighted both Rep Nardolillo’s ignorance of the potential harms of the bill, and the sustained and powerful testimonies against the bill from public health experts, people living with HIV and HIV NGOs alike.

Ahlquist concludes, “In the face of such strong opposition, it seems extremely unlikely that this legislation will advance out of committee.”

All testimonies are available to view in short video clips on the blog. You can also read the written testimony of the AIDS Law Project of the Gay & Lesbian Advocates & Defenders (GLAD) here.

Texas

On February 25, Republican Senator Joan Huffman introduced SB 779, which would essentially have created an HIV-specific criminal law by the back door.

Texas repealed its previous HIV-specific criminal law in 1994 and uses general criminal statutes, including attempted murder and aggravated assault, for potential or perceived HIV exposure and alleged HIV transmission cases.

According to the Advocacy Without Borders blog, “SB 779 proposes to amend the state Health and Safety Code to allow for HIV test results (which are currently confidential) to be subpoenaed during grand jury proceedings – and for a defendant’s medical records to be accessed without their consent to establish guilt/innocence and also potentially to be used to determine sentencing. Essentially, this bill proposes to criminalize having HIV.”

The proposed law, and a number of other proposed HIV-related laws, was also critiqued in a Dallas Voice article highlighting the opinion of Januari Leo, who works with Legacy Community Health Service.

Leo, a longtime social worker who has worked with clients living with HIV, is blunt about the three bills: “They would criminalize HIV. HIV isn’t a crime. It’s a public health problem…These new bills use HIV status as a crime, against people who are suspects in a crime but have yet to be proven guilty. They’re allowing prosecutors to use private medical records, as mandated under HIPPA, as a weapon.”

Although it was considered in a public hearing before the State Affairs Committee on April 16, it now appears to be dead.

The Positive Justice Project Steering Committee Voices Strong Opposition to Alabama Bill that Increase Penalties for Transmission of or Exposure to STIs

On April 1, 2015 the House Judiciary Committee of t he Alabama Legislature held a hearing on HB 50, proposed legislation that would raise conviction of exposure to or transmission of a sexually transmitted infection from a class C misdemeanor, punishable by up to 3 months in jail and a $500 fine, to a class C felony, punishable by up to 10 years in prison.

Canada: Provocative new resource from anonymous collective of people living with HIV explains how to protect yourself from prosecution

This is not intended as legal advice. Please always consult a lawyer if you are concerned about issues related to HIV non-disclosure or exposure. And do your own research!

Some of the tactics suggested in this document are within a grey area of the law. Make sure you are aware of this, and make onlydecisions that you are comfortable with to protect yourself. We do notpromote non-disclosure of one’s HIV status, nor do we support the stigma that can make it so difficult to do so.

An anonymous collective of people living with HIV and our allies produced this document. We have no leaders, no spokespeople, and no meetings. Copy this, share it, add to it, and adapt it to your own setting. Join us by doing it. Time is running out.

*The photos in this document are from the July 1990 Montreal Sex Garage riots

Download booklet version here!

HOW TO HAVE SEX IN A POLICE STATE: OUR APPROACH

In 1983, Americans Richard Berkowitz and Michael Callen published the book How to Have Sex in an Epidemic: One Approach, which is credited as being the first piece of safer sex literature for gay men. In the early days of the AIDS epidemic and in the absence of state action people with HIV and their friends banded together and took things into their own hands. Through advocating the use of condoms and by sharing available HIV prevention information, safer sex in the late 80s and 90s was conceived as a way to take collective accountability for addressing the epidemic, care for one another, and resist fear-based and abstinence-only responses.

Thirty-years after the publication of How to Have Sex in an Epidemic we face a new type of emergency here in Canada. State neglect in the response supporting people with HIV is now coupled with intensified forms of state control, surveillance and criminalization. Canada is among the most punitive countries in the world for HIV-positive people, where the state is turning towards criminalization instead of public education and support.

WHAT YOU NEED TO KNOW: The “Law” in Canada

The landmark 2012 Mabior and D.C. Supreme Court decisions outline that people are required to tell a partner they have HIV before they engage in sex that poses a ‘realistic possibility’ of transmission. This legal test requires disclosure for vaginal intercourse unless a condom is used and the person with HIV has a “low” viral load. This decision did not address same sex relations, anal sex, or oral sex. Anyone who doesn’t disclose their HIV positive status when having sex with a condom OR low viral load can be arrested and prosecuted. Since this decision at the Supreme Court prosecutions are on the rise. The risk of being labeled a criminal is now biologically marked – we are infected with criminal potential. Acquiring a low viral load requires access to anti-HIV drugs, which are still out of reach for many of us. Condom use is also complex when power and gender-based violence are factors. Charges can range from assault to attempted murder and do not require HIV transmission to occur. A majority of people in these cases are charged with aggravated sexual assault, one of the most serious offences in the Criminal Code reserved for violent sexual assaults. Those prosecuted can face long sentences, are registered as sex offenders and held in segregation units. One accusation from an angry or upset former lover can result in lengthy court battles, incarceration and sensationalized media exposure. Even if the person decides to drop the charges, the state can pursue criminal prosecution in the “public interest”.

Within this context of intensified criminalization we see the reversals of hard-fought protections for our privacy and rights. Under the AIDS Industry’s “treatment as prevention” project, people living with HIV are now understood as carriers of disease who must be neutralized through medical treatment. This treatment imperative plays out regardless of if we have access to the expensive medications, if we can tolerate their many side effects, or even if there is a medical necessity to go on them. The fundamental principles underlying HIV testing (i.e. consent, confidentiality, and counseling) are rapidly disappearing. Voluntary and anonymous HIV testing are being replaced by involuntary and coercive forms of testing, now called “routinized testing”, where people can be systematically tested in health-care settings – many of them without their knowledge. The names and HIV-status of people who test positive can end up on government databases for life. Also, through increased public health oversight, community–based organizations have now become an arm of state surveillance, discipline and control. Many of them now fully endorse and implement new coercive testing approaches in the community.

What follows is a list of suggestions gathered by people living with HIV to help one another steer clear of the law and the state, to protect our communities and ourselves.

TAKE THE TEST & RISK ARREST

People who test HIV-positive will in most cases have this information collected by public health officials. In the early days of the epidemic activists and other people with HIV fought to have their information about their HIV-status be anonymous and out of the hands of state officials. Today things are different.

Today, in order to prevent intervention from the criminal justice system and public health officials it could technically be in your best interest not to know your HIV status. While this is still a grey area within the law, if you do not “officially” know you have HIV, then you could have less of a chance of being charged or prosecuted in relation to non-disclosure. Although, if you have engaged in activities that are commonly understood to put you at risk of HIV infection then you could have a legal obligation to disclose these activities to other partners. In 2003, a case went to the Supreme Court called R. v. Williams, and while the case did not fundamentally alter how the law is applied it did outline that if someone has an awareness of risk, then they have a duty to disclose, even if they are not aware of their HIV status. So we know that willful ignorance about your status is not going to keep you completely out of the courtroom if someone presses charges against you or the police and public health come knocking at your door. But being careful about where you get tested and who knows your HIV test results could prove helpful in some cases. You can order home HIV testing kits online, or buy them while travelling to other countries where they are available.

Avoid all HIV or STI tests at clinics where your real name is recorded. If you do not already know your HIV status, only go for anonymous tests (ensure the clinic you go to does not record your name, or any contact information), or get an at home test from across the border or online. The police and others can use medical records to confirm that someone has HIV, has been counseled about their status, is aware of their viral load etc. and that they are thus criminally liable regarding cases of non-disclosure. To prevent this from happening, try your best to keep your HIV status out of official state, public health, and AIDS service organization record keeping practices.

If you test HIV-positive through anonymous testing and you want to go to a doctor – ask your doctor if they do a confirmatory HIV test. Some doctors are mandated by public health to do a confirmatory HIV test, which will have your name attached to it. However, there are some HIV specialists that do not follow this mandate. Ask your friends and look for a doctor who will not submit your HIV status to public health. Sometimes a doctor needs to make sure you have HIV before they are willing to provide care. You can ask that they do a viral load test, as public health authorities do not as of yet collect this data. Having a record of your viral load can act as an equivalent to a positive HIV-positive test for you, and also for your doctor to provide appropriate care, while keeping you out of the public health database. But this strategy will not help if the medical records your doctor keeps are subpoenaed in the case of arrest.

If you are arrested on a charge in relation an HIV, do not tell the police your HIV status, or anything else without a lawyer. Do not volunteer any information to the police. It is important to try and get a lawyer who is knowledgeable on HIV exposure and non-disclosure cases, so that you can get an adequate defense. Legal HIV organizations have connections to knowledgeable lawyers who understand these sorts of cases.

FUCK SAFELY: HOW TO PROTECT YOURSELF

While we need to protect ourselves from public health and the state, we also need to protect ourselves from potential partners who may call the cops on us out of fear, lack of information or AIDS-phobia.

If disclosing is not possible, maintaining a low viral load and using condoms are the only way to comply with the law. But we know that both acquiring a low viral load and always using condoms is not possible for everyone. Also, there have been cases where people have been charged despite disclosing their HIV status to a sex partner, or have used condoms and had a low viral load. So if you are in position to do so, ask your partners to sign a statement agreeing that they know your HIV-positive status and have agreed to have sex with you. Alternatively, you can keep a record of having disclosed on your phone or computer. Take a screen capture of your disclosure on hook up sites. Remember to record the date and time. Recording your disclosure on a social media app is also a potential strategy. If possible, consider the idea of disclosing your status to person in front of a trusted witness, friend, or at a trusted counselor at a community organization.

We know that disclosure can result in violence or other consequences. In this case there are still things that you can do to protect yourself and your partners. If condom use is possible, some people will make sure to keep used condoms from past partners labeled and frozen in the freezer as evidence that the sex they had was protected. These are ridiculous measures, but these are ridiculous times.

If you have questions about safe sex, talk to people you know and learn about different ways to fuck safely. If you talk to a health care provider, ask general questions and don’t detail challenges that you may be having with disclosure and condom use. If you have questions about your legal duties, for example if the condom breaks, don’t ask a health care provider. Ask a person who is familiar with the law (there are organizations what work on HIV and the law in Canada, look them up online). Make sure the person you talk to does not document your concerns in your health records or some other form of record (like records they keep on clients at AIDS Service Organizations).

KEEP YOURSELF OFF THE PUBLIC HEALTH RECORD

The less information the state has on you the harder it will be for them to develop a criminal or public health case against you. This doesn’t mean that you shouldn’t notify people of your own status, but can be a strategy of keeping the state out of your sex life.

Sometimes public health officials do ‘contact tracing’ or ‘partner notification’ where they document who has come into contact with whom (or in this case, who has had sex with whom) to notify other partners of the potential “risk”. If you come into contact with public health officials who are doing ‘contact tracing’ tell them that you do not know the names of anyone you have had sex with. This collection of information by public health could later lead to potential criminal charges, a public health order, or other consequences. One strategy is to tell public health officials that you only have anonymous sex and that you do not know the names of any people you have sex with, or that you don’t have the means of contacting them.

If your HIV status is already recorded by public health, and you test positive for another sexually transmitted infection (STI), you could be asked to meet with a public health nurse. The nurse may ask you to give them the names of whom you have had sexual contact with. Never give names or contact information of other people to public health. Public health could contact them and notify them of your HIV status and that person could press charges if you have not disclosed to them.

Some public health officials can be very aggressive and stigmatizing towards people living with HIV and they may harass you once they have any of your contact information. If this happens, you can make an official complaint against them by contacting the health unit where they work.

Each province has its own public health department and health units. Some public health units are more concerned with regulating people living with HIV than others. Some provinces have public health laws that allow for the issuance of public health orders. Under public health law people can be mandated with legal orders to disclose their HIV-positive status to all sex partners in specific terms, practice sex in specific ways, or even be put under house arrest, as well as being court-ordered to take pharmaceuticals. To better protect yourself, know what public health jurisdiction you are in, and if they issue public health orders to people living with HIV.

If you receive a public health order, or get arrested call a lawyer right away! You often only have 15 days to respond to a public health order, and you will need a lawyer as soon as possible to support you in this process.

ACCESS SUPPORT NOT SURVEILLANCE

When going to a community organization, AIDS Service Organization or healthcare provider always ask any counselor, nurse, doctor, social worker, peer worker, or other support worker how, why, and under what circumstances they are professionally required to document their interactions with you, and if this data can be used to identify you. In many organizations, there is an increasing push to collect more and more information on people who access services, but this information can also be used against you. Anything they write down or collect about you can be subpoenaed and used as evidence in a court of law. Make sure that you trust your healthcare providers and they are transparent about how and why they keep records on you. Do not give out any information about your sex life, sex partners, HIV status or sex practices unless you are absolutely certain that they will respect your confidentiality and not document what you tell them. You can always request a copy of your file or any notes kept on you. Alternately, if you are disclosing to your sexual partners, you can ask your care provider to note this in your file to further protect yourself against accusations.

MAKE THIS AN ISSUE IN YOUR COMMUNITY

We are in a dangerous moment under the watch of a hostile regime and we urgently need to take back control of our lives, our health and our freedom. When possible, talk about HIV and talk about the potential impacts of HIV criminalization with friends, sex partners, colleagues, family and with communities that you are part of. Make it known that you are a person that other people can talk to about these issues. Work in your communities to build consensus at a grass-roots level to end the criminalization of HIV.

Police can pressure people in these cases into pressing charges. Refuse to be a witness and help prosecutions. Respect people’s decisions about disclosing. This complex social issue cannot be understood within – or reduced to – a legal and policing framework of “victim” and “perpetrator”. Work to undermine these practices that support criminalization. Encourage dialogue over calling the cops.

Be proactive and hold community organizations accountable. Call for AIDS Service Organizations, health-care providers, or other community groups to not participate in reporting or record keeping practices that could support HIV criminalization investigations. Ask these organizations to be transparent about what they do and what their policies are around reporting and collection of information. If they do not have policies or practices around this, push them to develop them. Ask community organizations, if their records are subpoenaed, to tell the cops to seal the evidence and instruct them that it can only be opened before a judge. This can buy you time to oppose the use of these records as evidence.

This issue is not over. There are opportunities for change if people start taking action now! As people living with HIV, we know this: We are responsible and we already practice care for the health of our sex partners. Now we must take action to protect ourselves from the violence of the state, the violence of the AIDS Industry, the violence of AIDS-phobia, and the violence of the criminal injustice system. As the carceral system becomes the watermark of our everyday life it is becoming clear that we are not the “public” that public health is interested in protecting. But we can protect ourselves if we work together, support each other, share strategies and push for change.

Infectious Disease Society of America (IDSA) and HIV Medicine Association (HIVMA) Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases (2015)

This statement was issued by the Infectious Diseases Society of America (IDSA) and the HIV Medicine Association (HIVMA) on the urgent need to repeal or modernize HIV-specific criminalization statutes and laws criminalizing transmission or exposure to sexually transmitted infections and other communicable diseases.

US: Positive Justice Project releases a set of principles to guide modernisation of state criminal laws

Today, in the wake of recent court decisions rejecting several applications of the criminal law to people with HIV, the Positive Justice Project (PJP) , a national coalition challenging HIV criminal law policies in the United States, released a set of principles to guide the modernization of state HIV criminal laws across the country.

“Ending criminal prosecutions based on HIV or other health conditions is a vitally important part of a sound, public health approach to ending the epidemic,” said Kim Miller of the HIV Medicine Association (HIVMA). “Treating a medical condition as evidence of a crime is at direct odds with public health campaigns to get as many people as possible tested and, if HIV positive, into treatment,” added Ms. Miller. “That is the best way to protect everyone, since treatment keeps people healthy while reducing already low transmission risks to near-zero.”

Currently, 32 states have criminal laws that punish people living with HIV for conduct that would be legal if they did not get tested and did not know their HIV status. Conviction under these laws can result in decades-long prison sentences despite very low transmission risks and dramatic improvements in treatment that have transformed what it means to live with HIV.

Carole Treston of the Association of Nurses in AIDS Care (ANAC) confirmed, “On treatment people living with HIV can expect to live long and healthy lives. It’s time for the law to catch up with the science on the real risks and realities of HIV in the twenty-first century.”

The Guiding Principles for Eliminating Disease-Specific Criminal Laws call for modernization of existing laws that exclude HIV and other infectious diseases from long-established interpretations of criminal felony laws requiring proof of intent to harm accompanied by conduct likely to cause death or severe injury for a conviction. At present, most states require only evidence that a person has been diagnosed with HIV and has engaged in some form of contact with a third party for a felony conviction and, in some cases, life-long sex offender registration.

In 2014, the U.S. Department of Justice issued the Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors; and in 2013 the Presidential Advisory Council on HIV/AIDS (PACHA) issued a Resolution on Ending Federal and State HIV-Specific Criminal Laws, Prosecutions, and Civil Commitments. A growing number of political, legal, public health and advocacy organizations also have called for the modernization of HIV laws.

“Both HIV and the prison system have a disproportionate reach into communities of color,” stated C. Virginia Fields, Director of the National Black Leadership Commission on AIDS. “Laws that make an HIV test the basis for a felony prosecution are a double burden for those at greatest risk of both HIV and entanglement in the criminal justice system. We need to end this yesterday, and we need to do it right. These principles are a great step in the right direction.

Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health

Conference Dates and Location:

February 23-26, 2015 | Seattle, Washington

Abstract Number:

129

Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health

Primary Author:

Jeffrey Crowley¹

¹ O’Neill Institute for National and Global Health Law, Georgetown University, Washington, District of Columbia, United States

Abstract Body:

Laws and policies have been used to protect people living with HIV and affected communities from stigma and discrimination. Indeed, the Americans with Disabilities Act (ADA) and the UN Convention on the Rights of Persons with Disabilities are just two legal instruments that help to create environments where people feel safe enough to come forward for HIV testing and to engage in care. Laws and policies also are used in ways that are highly stigmatizing and that hinder public health approaches to responding to HIV. In the United States, thirty-four states and territories have laws that criminalize the conduct of people living with HIV based on perceived exposure to HIV and without any evidence of intent to do harm. Far from representing a legacy of the past, people with HIV continue to be prosecuted and jailed for failure to disclose their HIV status prior to engaging in sex and for spitting and biting offenses, often in the context of arrest by law enforcement. Moreover, this is a challenge in countries across the globe. As of 2013, twenty-six African countries had overly broad and/ or vague HIV-specific criminal laws, most enacted over the past decade, with a further three countries considering new HIV-specific criminal laws. As governments, clinicians, researchers, and advocates seek to maximize population-level HIV viral suppression both to protect the health of people with HIV and also to reduce HIV transmission, these laws and policies could hinder our collective efforts. This talk will examine the current landscape of HIV criminal laws and policies in the US and selected African countries, will examine available data on the effectiveness of such laws at deterring behaviors such as failure to disclose HIV status prior to sexual encounters, and will look for common lessons from both Africa and the US to suggest a path forward for promoting effective evidence-based approaches to reducing HIV transmission.

Session Number:

S-5

Session Title:

Advancing HIV Prevention: Lessons from Biology, Medicine, and Public Health Law

Presenting Author:

Crowley, Jeffrey

Presenter Institution:

Georgetown University

Zimbabwe: HIV-specific criminal law on trial; ZLHR launches campaign highlighting impact of overly broad HIV criminalisation on women

Tomorrow, Zimbabwe’s HIV-specific criminal statute, Section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 will be on trial itself, facing its first-ever challenge in the Constitutional Court.

The Court will hear arguments on behalf of two applicants – Pitty Mpofu and Samukelisiwe Mlilo – both of whom were unfairly convicted of “deliberate transmission of HIV” in 2012, and who are now represented by Zimbabwe Lawyers for Human Rights (ZHLR).

“The provision is too wide, arbitrary and therefore violative of the protection of the law guarantee. It is submitted that the legislature has created an offence which is as scary as the evil that it seeks to redress.” Applicants head of arguments (1.1)

Law on trial

Although the ‘crime’ in Section 79 is called “deliberate transmission of HIV”, a wide range of variables are possible that involve neither being deliberate nor actually transmitting HIV.

It is a crime for anyone who realises “that there is a real risk or possibility” that he or she might have HIV to do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV.”

This, argues the applicants, is overly broad and unconstitutionally vague.

(Scroll to the bottom of the page, or click the link, to read the entire Applicants heads of arguments.)

Since 1996, International Guidelines on HIV and Human Rights have recommended that:

 ”Criminal and/or public health should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.”

It is eminently clear that Section 79 does not ensure that “elements of foreseeability, intent [or] causality” are adequately provided for, although there is a defence of informed consent via disclosure. (It is not clear, however, exactly what needs to be disclosed, given that it is possible to be prosecuted for anything that might be a risk even if you haven’t been tested).

Although the Zimbabwe law predates other African laws based on the flawed N’Djamena model law, funded and disseminated with US international aid money, it contains many of the same problems. (Zimbabwe passed the first version of Section 79 in 2001 and updated it in 2004 to include people who suspected they were HIV-positive, but were not yet diagnosed.)

‘UNAIDS recommendations for alternative language to some problematic articles in the N’Djamena legislation on HIV (2004)’, specifies the kind of language that could be used, should Zimbabwe still deem to find an HIV-specific criminal statute necessary.

Notably, it recommends defining ‘deliberate transmission of HIV’ as “transmission of HIV that occurs through an act done with the deliberate purpose of transmitting HIV”.

It further recommends that no criminal liability should be imposed upon:

an act that poses no significant risk of HIV infection.**
a person living with HIV who was unaware of his or her HIV infection at the time of the alleged offence.
a person living with HIV who lacked understanding of how HIV is transmitted at the time of the alleged offence.
a person living with HIV who practised safer sex, including using a condom.**
a person living with HIV who disclosed his or her HIV-positive status to the sexual partner or other person before any act posing a significant risk of transmission.
a situation in which the sexual partner or other person was in some other way aware of the person’s HIV-positive status.
a person living with HIV who did not disclose his or her HIV status because of a well-founded fear of serious harm by the other person.
the possibility of transmission of HIV from a woman to her child before or during the birth of the child, or through breastfeeding of an infant or child.

**The issues of significant risk and safer sex (along with the difficulties of proving timing and direction of transmission) are further expounded upon in UNAIDS expanded and updated 2013 guidance.

However, Zimbabwe could also decide to do away with Section 79 altogether, and implement a new law based on a model law developed for the Southern African Development Community (SADC; www.sadc.int), which comprises Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

This model law, which was unanimously adopted by the SADC Parliamentary Forum in 2008, integrates the protection of human rights as a key element of an effective response to HIV and has no specific provisions allowing for the criminalisation of potential or actual HIV exposure or transmission.

Alone But Together

Zimbabwe Lawyers for Human Rights are using the Constitutional Court hearing as a springboard for a campaign against overly broad HIV criminalisation, highlighting the case of Samukelisiwe Mlilo who features in a powerful 15 minute documentary produced by ZLHR, ‘Alone But Together – Women and Criminalisation of HIV Transmission: The story of Samukelisiwe Mlilo’.

Today, they will launch the documentary in Harare under the banner; ‘HIV on Trial – a threat to women’s health’.

Ms Mlilo was found guilty of ‘deliberately’ infecting her husband with HIV and faces up to 20 years in jail despite there being no proof that she had infected her husband. She claims she had disclosed her status to him following her diagnosis during pregnancy, and that her husband only made the complaint in revenge for her own complaint of gender-based violence following the breakdown of their marriage.

“At this point we do not know who infected who,” ZLHR’s Tinashe Mundawarara told Voice of America News in August 2012. “This is an example of the violation of women’s rights. Women are likely to know of their status first. Mlilo might have been infected by her husband, no one knows, and got charged and convicted.”

The other applicant, Pitty Mpofu, was also found guilty of ‘deliberate’ transmission of HIV a month after Ms Mlilo.

It was alleged that he infected his wife sometime between October 2009 and June 2011 , although he wasn’t diagnosed until “sometime in 2010.” No proof regarding timing nor direction of transmission was provided during the trial.

Highest number of reported criminal prosecutions in Africa

The first known successful prosecution in Zimbabwe took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted.

In this case, a 26-year-old woman who had mutually consensual sex with a male partner pleaded guilty to non-disclosure prior to unprotected sex. She was given a five-year suspended sentence, primarily because the partner – who had tried to withdraw the charges – did not test HIV-positive.

A further five men and three women have since been prosecuted, along with a 2010 case where a man was fined for falsely accusing his girlfriend, who subsequently tested HIV-negative, of infecting him with HIV.

The most recent court case, from November 2014, involved a man who was found guilty “based on a single witness” and sentenced to 15 years in prison.

Mpofu/Mlilo vs State, Constitutional Court of Zimbabwe, Harare (Case SC96/12 and 340/12 by HIV Justice Network

UK: Law Commission scoping consultation deadline this week; key findings and outputs from ‘Criminalizing Contagion’ seminar series may help inform the process

This week, the Law Commission – which reviews areas of the law in England and Wales that have become unduly complicated, outdated or unfair – will conclude its scoping consultation of the reform the Offences Against The Person Act, the law that is currently used to prosecute people living with HIV (and occasionally other sexually transmitted infections; one each so far for gonorrhoea, hepatitis B and genital herpes) for ‘reckless’ or ‘intentional’ transmission, as grievous bodily harm.

The deadline for responses is this Wednesday 11 February 2015.

The consultation is a scoping review – it is looking at the scope of whether a further full review of the existing law should take place, rather than examining what the law should be.

The consultation asks six key questions (out of 38) specifically relating to HIV (and STI) criminalisation:

We consider that future reform of offences against the person should take account of the ramifications of disease transmission. Do consultees agree?
We also consider that in such reform consideration should be given to: (1) whether disease should in principle fall within the definition of injury in any reforming statute that may be based on the draft Bill; (2) whether, if the transmission of sexual infections through consensual intercourse is to be excluded, this should be done by means of a specific exemption limited to that situation. This could be considered in a wider review; alternatively (3) whether the transmission of disease should remain within the offences as in existing law. Do consultees agree?
If the transmission of disease is to be included in any future reform including offences causing injury, it will be necessary to choose between the following possible rules about the disclosure of the risk of infection, namely: (1) that D should be bound to disclose facts indicating a risk of infection only if the risk is significant; or (2) that D should be bound to disclose facts indicating a risk of infection in all circumstances; or that whether D was justified in exposing V to that risk without disclosing it should be a question for the jury in each particular case. Do consultees have any preference as to these possible rules?
We consider the reform of offences against the person should consider the extent to which transmission of minor infections would be excluded from the scope of injury offences. Do consultees agree?
Do consultees consider that future reform should pursue the possibility of including specialized offences of transmission of infection, endangerment or non-disclosure?
Do consultees have observations on the use of ASBOs, SOPOs or other means of penalizing non-disclosure?

Responses to the scoping consultation, including those from the HIV Justice Network, will be published soon. Following the consultation, the Law Commission will decide on their recommendations for the scope of reform in this area and present them to Government in the form of a scoping report.

In the meantime, the summary of key findings and outputs from the Economic and Social Research Council’s seminar series ‘Criminalizing Contagion: legal and ethical challenges of disease transmission and the criminal law’, which took place at the Universities of Southampton and Manchester from January 2012 until September 2014, provides a comprehensive legal and academic overview regarding how the law should treat a person who transmits, or exposes others to the risk of, a serious infection such as HIV.

Written jointly by David Gurnham, Catherine Stanton and Hannah Quirk, the report provides a detailed overview of the discussions in the seminars as well as the numerous publications arising from them, and acknowledges contributions made by various groups and individuals.

Sex, criminal law & HIV non-disclosure: What is wrong with Canada’s approach to HIV non-disclosure? (Canadian HIV/AIDS Legal Network, 2014)

This is the second of two short videos from the Canadian HIV/AIDS Legal Network explaining what the law currently is relating to HIV non-disclosure (covered in Part 1) and what is wrong with this approach. Watch Part 1 here: http://bit.ly/1oMs1DM

The Criminalization of HIV in Canada

(32 mins, BearPaw Media, Canada, 2014)

The Canadian Aboriginal population is one of the fastest growing groups being diagnosed with HIV today. Due to a lack of education, people living with HIV continue to face fear and discrimination. Court and legislator involvement in their lives makes matters even more complicated. This video features four Aboriginal Canadians diagnosed with HIV. In hearing their stories, the viewer will learn how they cope with the stigma surrounding their illness and live within the new rules governing the most intimate part of their lives.

See more at: http://ncsa.libguides.com/bearpawvideos