US: New Study Questions Michigan’s “Health Threat” Law (Press Release)

Michigan health officials are using HIV surveillance technologies to assist in enforcing a “health threat” law that makes it illegal for HIV-positive people to have sex without disclosing their status.

A new University of Michigan study reveals that health officials employ the state’s names reporting database, alongside partner services referrals, for law enforcement purposes. However, this is bad social policy for a variety of reasons, says Trevor Hoppe, the study’s author and a doctoral candidate in sociology and women’s studies.

When clients visit publicly funded health clinics in Michigan to be tested for HIV, they can expect more than just a finger prick or blood draw. Counselors also ask clients extensive questions about their sexual practices and partners. If the client tests positive for HIV or other sexually transmitted diseases, the counselor will provide treatment referrals. They are also legally mandated to ask clients to report the names of sexual partners, which health officials attempt to contact to recommend that they be tested.

Hoppe found that some health officials also ask their clients if any of their partners reported to them that they were HIV-positive. Officials then attempt to cross-reference the reported name against the state’s database of everyone in the state who has been diagnosed as HIV-positive. If an individual reported as a partner is identified by the state as HIV-positive and the client did not report that they disclosed, an investigation would be launched that could have legal ramifications.

At least 24 states have laws making it a misdemeanor or felony for HIV-positive people to have sex without first disclosing their status. In Michigan, failing to disclose is a felony punishable by up to four years in prison—whether or not the person was ever at risk of contracting the disease from their partner.

“The evidence is mounting that these laws are bad public policy and certainly bad public health policy, yet Michigan health officials are helping to enforce them,” Hoppe said.

At the minimum, there is little transparency in how health officials use epidemiological data for law enforcement purposes, he says.

“Health officials in some local jurisdictions are using data they collect for public health purposes to help enforce the law, but they’re not telling their clients how their personal information could be used,” Hoppe said.

From an ethical perspective, the question is whether it is reasonable for health officials to use confidential medical information to enforce the law.

Hoppe interviewed 25 local health officials who manage “health threat” cases from 14 jurisdictions across Michigan. His research also reveals that how local health officials interpret what qualifies as a “health threat” varies. In some cases, local officials suggested that an HIV-positive woman who became pregnant or contracted another STI might be labeled a “health threat.”

“These systems were not intended for legal surveillance, yet data collected by them are susceptible to being used for criminal proceedings,” Hoppe said.

Whether this practice should be continued must be discussed among policymakers, advocates and stakeholders, including those in the HIV-positive and –negative community, he said.

The findings appear in the February issue of the journal Social Problems.

Social Problems – Controlling Sex in the Name of Public Health (2013)

UN Commission on the Status of Women Accepts Statement on HIV Criminalization and Women

The 57th Session of the UN Commission on the Status of Women accepted for publication a Statement calling for the repeal of all laws criminalizing HIV transmission, exposure to HIV, or failure to disclose HIV status.

GMHC | GMHC Releases New Report, "Fenced in: HIV/AIDS in the U.S. Criminal Justice System"

This comprehensive report documents how mass imprisonment often destroys relationships, healthcare regimens, and employment opportunities for formerly incarcerated individuals. As a result, communities with high rates of incarceration also tend to have high rates of HIV infection. The state of HIV care and prevention inside prisons and jails is also examined, and comparisons between states in the U.S. and countries across the globe are explored.

A call to support action on the PLHIV Global Advocacy Agenda which includes advocating against HIV criminalisation, amongst many other pressing issues

We are people living with HIV. Over three decades into this epidemic, we are angry that still 4500 of us are dying of AIDS-related illnesses every day. Sixteen years after developing effective treatment, more than half of all of us who need it cannot access these life-saving drugs.

Clear, concise interview on risk, legal literacy following Canadian Supreme Court decision

In a wide–ranging interview that poses difficult questions, Bob Leahy asks Toronto-based clinician/scientist Dr. Rupert Kaul about how can we interpret risk of HIV transmission in the age of undetectable viral load.

Canada: Analysis and implications for people with HIV following Supreme Court HIV non-disclosure decisions

The Canadian HIV/AIDS Legal Network has published three important new resources in the aftermath of last month’s devastating Supreme Court decision which found that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission.

Not disclosing in such circumstances means a person with diagnosed HIV could be convicted of aggravated sexual assault.

As well as a detailed analysis in a briefing paper (aussi disponible en français) and a shorter info sheet, the Legal Network has produced a very helpful – if depressing – Q&A for people living with HIV (aussi disponible en français) as well those who support and advise them.

It is clear from these analyses that the Supreme Court’s decisions are a major step backwards for human rights and for public health.

I am reproducing below the commentary from their briefing paper as well as the Q&A, with permission. For the entire text, with footnotes and references, please visit the Canadian HIV/AIDS Legal Network website.

Canadian HIV/AIDS Legal Network

HIV non-disclosure and the criminal law: An analysis of two recent decisions of the Supreme Court of Canada (R. v. Mabior, 2012 SCC 47, R. v. D.C., 2012 SCC 48)

On October 5, 2012, the Supreme Court of Canada released its decisions in the cases of Mabior and D.C. The Court decided that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission. Not disclosing in such circumstances means a person could be convicted of aggravated sexual assault. In defining when there is a “realistic possibility” of transmission, the Court has set the bar very low. At this time, the only sex that the Court has recognized as not posing a realistic possibility of HIV transmission is vaginal sex that takes place when (1) a condom is used, AND (2) the person living with HIV has a low or an undetectable viral load. If both of these conditions are met, then there is no obligation under the criminal law to disclose one’s HIV status. However, the Court has not clarified how the requirement to disclose in the case of a “realistic possibility” of transmission applies to any sexual activity other than vaginal sex.

Commentary

For people living with HIV and for those working in the field of HIV prevention and care, these decisions are a major step backward from the Supreme Court of Canada’s previous decision in Cuerrier. While the Court said it was maintaining the “significant risk” test it previously established in 1998, it has deprived the word “significant” of much meaning. A “significant risk” of transmission must now be understood as a “realistic possibility” of transmission, and the Court says this includes anything higher than a “negligible threshold” or anything more than a “speculative possibility.”

By deciding that there is a duty to disclose before vaginal sex unless both a condom is used and a person’s viral load is low (i.e., where the risk is almost zero), the Court effectively decided that almost any risk, no matter how small, could trigger a duty to disclose, even as the Court also declared that it did not want to criminalize “any risk, however small.” This was but one of numerous contradictions in the Court’s judgments in these cases. In essence, the Court purported to put some limit on the scope of the criminal law, but that limit was largely illusory.

The Supreme Court recognized that although the law must ensure that consent to sex is meaningful, “not every deception that leads to sexual intercourse should be criminalized.” It also stated that there must be a balance between a sexual partner’s interest in autonomy and equality in consenting to sex, which values are entrenched in the Canadian Charter of Rights and Freedoms, and “the need to confine the criminal law to conduct associated with serious wrongs and serious harms.” The Court further acknowledged that an overly broad use of the criminal law would be unfair and stigmatizing for people living with HIV, and that the experience of other common law jurisdictions “sounds a note of caution against extending the criminal law beyond its appropriate reach in this complex and emerging area of law.”

Yet despite these multiple warnings, the Supreme Court of Canada chose to expand the scope of the criminal law in cases of HIV non-disclosure and to clearly indicate that its new test of disclosure being required in the case of a “realistic possibility” of transmission is “specific to HIV.” Moreover, although the Court was clear that “[t]he potential consequences of a conviction for aggravated sexual assault … underline the importance of insisting on moral blameworthiness in the interpretation of [the law],” it failed to address the issue of the mens rea (i.e., “guilty mind”) required to obtain a conviction for HIV non-disclosure, as had been suggested by the coalition of AIDS organizations. As a result, based on the Court’s decisions in Mabior and D.C., a person who acts responsibly by taking highly effective precautions to protect their partner, and who has no intent to cause harm, can face charges of aggravated sexual assault.

Finally, the Court did say that the law should be open to “adapting to future advances in treatment.” Such advances could further affect both the risks of HIV transmission and the harm associated with HIV. But very significant advances have already taken place. When treatments are available, HIV is already a chronic and manageable disease. Moreover, the impact of treatment on dramatically reducing what are already very small risks is now well established. It is therefore unfortunate that the Court refused to consider this existing evidence about the impact of low viral load sufficient to preclude criminal charges.

In addition to its contradictory approach to assessing and criminalizing the risk of HIV transmission, the Court’s approach to consent was also deficient. The Court made a passing reference to an earlier, leading case (R. v. Ewanchuk) about when consent to sex is not valid; Ewanchuk concerned rape myths and situations where there was no real consent to sex because it was forced or because a person was afraid to refuse. The Court also repeatedly asserted that its approach in Mabior and D.C. was in line with the Charter values of equality and sexual autonomy.

But nowhere did the Court meaningfully analyze how the law protects personal autonomy and advances equality (i.e., specifically for women) by overriding the consent of an adult to engage in sex solely because of the absence of certain information they might prefer to know. The Court ignored the cases decided in Canada since Cuerrier on HIV non-disclosure and much of the analysis emerging from various other, similar jurisdictions where the trend is to limit the criminal law. Whether or not the Supreme Court wants to admit it, people do have sex without full and complete information about their sexual partners all the time — including in circumstances which can give rise to some risk of serious harm. Yet the law does not step in to all such circumstances to override consent and criminally prosecute the lack of disclosure of information.

Consenting adults are capable of deciding whether to have protected or unprotected sex without being aware of whether a particular partner does or does not have HIV or another sexually transmitted infection (STI), and do so often. Contrary to the Court’s basic assumption, sexually active adults are not deprived of their autonomy, including their ability to decide whether to practise safer sex, simply because they lack information about a sexual partner’s HIV or other STI status.

The Court also failed to consider the challenges associated with disclosure of a heavily stigmatized and misunderstood condition: repercussions can include loss of privacy, discrimination and rejection, and even violence. Lack of disclosure may not be about asserting force over another person in order to gain sexual gratification — which is the assumption behind equating it with aggravated sexual assault — so much as about protecting oneself from violence or other harm. By broadly asserting that this is about protecting the dignity and autonomy of the sexual partner without any examination of the range of factors at play when people have sex, the Court revealed a shallow understanding of the values that it purports to protect when criminalizing HIV non-disclosure, even in cases where the risk of transmission is miniscule. Such an approach trivializes sexual assault and diverts the law from protecting women’s physical and sexual autonomy.

In addition, the Supreme Court decisions in Mabior and D.C. did not provide much certainty in the law. There are many questions that remain unanswered and that will be tested in courts on the backs of people living with HIV. Do people have a duty to disclose before they engage in oral sex? What about those who have an undetectable viral load at the time they have oral sex? How do these decisions apply to anal sex?

Finally, these decisions further undermine public health and the rights of people living with HIV. They create additional disincentives to seek HIV testing and will discourage some people from talking with their counsellors and physicians about their sexual and disclosure practices, as medical and counselling records can be subpoenaed and used in criminal investigations.

The Court’s decisions will also disproportionally affect the most vulnerable. Access to treatment was once an issue of public health and social justice. Now it is also a criminal issue. People with inadequate access to care, treatment and support may not be able to establish a low viral load. If they do not or cannot disclose their status — including because of fear of violence or other negative consequences — they will be exposed to criminal conviction and imprisonment. Based on the Supreme Court of Canada’s judgments, a condom alone is not sufficient to avoid conviction.

The Court has put another tool for coercion into the hands of abusive partners. This can only exacerbate the vulnerability of HIV-positive people in abusive and/or violent relationships to blackmail and threats of prosecutions, an outcome that will disproportionately affect women living with HIV. In summary, the Court’s decisions in Mabior and D.C. make already bad and unclear law, which has resulted in uneven application and injustice in numerous cases, even worse — for people living with HIV, for HIV prevention and care efforts, and hence for public health.

Q&A: Implications of recent Supreme Court of Canada decisions for people living with HIV

When do you have a legal duty to disclose your HIV-positive status to a sexual partner?

The Supreme Court of Canada says that you must disclose your status before having sex that poses “a realistic possibility of transmitting HIV.” But the Court also found that almost any risk is “realistic,” no matter how small. Based on the Court’s decisions, you have a legal duty to disclose:

▪ before having vaginal or anal sex* without a condom (regardless of your viral load); or

▪ before having vaginal or anal sex* with anything higher than a “low” viral load (even if you use a condom).

* See below for more information on the duty to disclose and anal sex.

In summary, either using a condom or having a low viral load is not enough to preclude criminal liability in cases of HIV non-disclosure when it comes to vaginal and anal sex.

When don’t you have a duty to disclose?

The Supreme Court of Canada was clear that you do not have a duty to disclose before having vaginal sex if (1) your viral load is low or undetectable and (2) you use a condom. Both of these are required.

▪ NOTE: Your viral load does not need to be “undetectable.” A “low” viral load is sufficient. What this means remains to be defined in subsequent cases. However, based on the Supreme Court of Canada decisions, it seems that it should at least include any viral load below 1500 copies of the virus per millilitre of blood.

What is still unclear?

There is still a lot of uncertainty in the law. Because the cases before the Supreme Court of Canada only dealt with HIV non-disclosure in the context of vaginal sex, it is not clear how the test of a “realistic possibility of transmission” will be applied to other sexual acts.

▪ What about anal sex?

Anal sex poses higher risks of transmission than vaginal sex, so the duty to disclose is at least as strict as for vaginal sex. In other words, you have a duty to disclose before having unprotected anal sex or when your viral load is higher than “low.” It might be the case that, as with vaginal sex, if you use a condom and your viral load is low, you don’t have a legal duty to disclose. But at this time, we can’t say for certain if satisfying both these requirements (condom use plus a low viral load) will be enough to avoid convictions in the case of anal sex.

▪ What about oral sex?

Oral sex (without a condom) is usually considered very low risk (i.e., an estimated risk ranging from 0 to 0.04%). We don’t know at this point whether courts will find that there is a duty to disclose before oral sex without a condom. We also don’t know whether it makes a legal difference if you are receiving or performing oral sex, or whether the amount of semen or vaginal fluid that the person performing oral sex is exposed to can make a legal difference.

What if you have a low or undetectable viral load AND use a condom but the condom breaks?

This is a very difficult question to answer and there are several factors that you should take into account:

▪ Although this issue was not addressed by the Supreme Court of Canada, you may have a duty to disclose in the case where a condom breaks.

▪ Disclosing your status after a condom breaks could be relevant to your sexual partner in deciding whether to seek “post-exposure prophylaxis” (PEP) with antiretroviral drugs to further reduce any risk of infection.

▪ But disclosure in such circumstances may also expose you to an increased risk of violence and/or threat of prosecutions. HIV continues to generate a lot of fear and misconception. Your partner may have a bad reaction if he or she discovers that you are HIV-positive after a condom breaks.

How can you protect yourself against prosecutions?

There is no guaranteed way to avoid being accused of HIV non-disclosure. People may lie or make mistakes about whether disclosure took place and/or whether a condom was used. But there are things you can do that may reduce the risk of criminal prosecutions or conviction for HIV non-disclosure.

▪ Tell your sexual partners that you are HIV-positive before sex, and try to get proof that you told them about your status (e.g., disclose your status in front of a witness before having sex, such as a counsellor or doctor, who can document that disclosure took place, or sign a joint document).

N.B.: Please be aware that any document that would establish that you had sex prior to disclosure might work against you. This could especially be the case if you had vaginal or anal sex before you first disclosed and, at the time of that sexual act, you did not use a condom or you cannot establish that your viral load was low or undetectable at that time.

▪ Use a condom when you have vaginal or anal sex and see a doctor regularly to create a record of your viral load test results showing lowered viral load.

Other important things to know about the Supreme Court of Canada decisions and the legal duty to disclose:

▪ There is no distinction between silence and a lie. People may face criminal charges for not disclosing their status whether their partners inquired about their HIV status or not.

▪ There is no distinction based on the circumstances of a particular encounter, including the type of relationship. People may face criminal charges whatever the type of relationship they had with their partner (e.g., whether with a casual partner versus a spouse) and whether the sex was for love, fun, money, procreation or drugs.

▪ People living with HIV can be prosecuted even if they had no intent to harm their partner.

▪ People living with HIV can be charged with aggravated sexual assault for not disclosing their status. An aggravated sexual assault is a sexual assault that “endangers the life” of the other person. It carries a maximum penalty of imprisonment of life and mandatory registration as a sexual offender.

The information contained [above] is information about the law, but it is not legal advice. For legal advice, please contact a criminal lawyer.

US: HIV Medicine Association calls for repeal of HIV-specific laws

The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) has issued a strong statement urging the repeal of HIV criminalisation statutes in the United States.

The HIVMA statement, which represents physicians, scientists and other health care professionals across the United States, demands the following:

An end to punitive laws that single out HIV infection and other STIs and that impose inappropriate penalties for alleged non-disclosure, exposure and transmission
All state and federal policies, laws and regulations to be based on scientifically accurate information regarding HIV transmission routes and risk;
A federal review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offences to identify harmful policies and federal action to mitigate the impact of these laws, including the repeal of these laws and policies or guidance for correcting harmful policies; and
Promotion of public education and understanding of the stigmatising impact and negative clinical and public health consequences of criminalisation statutes and prosecutions.

The HIVMA statement is another extremely important development in the Positive Justice Project’s campaign to repeal HIV-specific criminal laws in the United States.

In March 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD) – a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US – issued a similar statement.

The full HIVMA statement, which can be downloaded here, is published below.

HIVMA URGES REPEAL OF HIV-SPECIFIC CRIMINAL STATUTES

(Approved: October 16, 2012)

The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) represents physicians, scientists and other health care professionals who practice on the frontline of the HIV/AIDS pandemic. HIVMA strongly advocates public policies that are grounded in the science that has provided the tools and knowledge base to envision a world without AIDS.

Stigma and discrimination continue to be major impediments to the comprehensive response necessary to address the HIV public health crisis. Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV- infected are unjust and harmful to public health around the world.

In the U.S., HIV criminalization has resulted in unacceptable human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty-two states and two U.S. territories have HIV-specific criminal statutes. Thirty-two states have arrested or prosecuted individuals with HIV infection for consensual sex, biting and spitting. These laws and prosecutions unfairly target individuals with HIV infection and are not based on the latest scientific knowledge regarding HIV transmission, including the finding that transmission risk from biting or spitting is negligible.

Individuals with HIV infection can live healthy lives and approach near normal life expectancies with access to HIV care. Early diagnosis and effective management of HIV infection not only improves clinical outcomes for infected individuals but significantly reduces their risk of transmitting the virus to others. Laws that criminalize HIV infection discourage individuals from learning their HIV status and from receiving care. In doing so, they jeopardize the lives of HIV-infected individuals and place more individuals at risk of contracting an infectious disease that remains fatal if untreated.

HIV-specific criminalization fuels the stigma associated with HIV infection that slows efforts to combat the disease. Despite the availability of highly effective treatment for HIV infection, of the 1.1 million individuals living with HIV infection in the U.S., nearly 20 percent remain undiagnosed, only 37 percent are in care and just 25 percent have undetectable levels of the virus in their blood which makes it unlikely for them to be infectious to others.

All individuals must take responsibility for protecting themselves from HIV infection and other sexually transmitted infections (STIs). All persons engaging in unprotected or potentially risky sexual behavior are encouraged to discuss and disclose HIV and STI status except in situations where disclosure poses a risk of harm.

HIVMA Position:

HIVMA urges a coordinated effort to address and repeal unjust and harmful HIV criminalization statutes. We support the following:

An end to punitive laws that single out HIV infection and other STIs and that impose inappropriate penalties for alleged nondisclosure, exposure and transmission;
All state and federal policies, laws and regulations to be based on scientifically accurate information regarding HIV transmission routes and risk;

A federal review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses to identify harmful policies and federal action to mitigate the impact of these laws, including the repeal of these laws and policies or guidance for correcting harmful policies; and

Promotion of public education and understanding of the stigmatizing impact and negative clinical and public health consequences of criminalization statutes and prosecutions.

Video: Seminar on HIV Criminalisation, Berlin, 20 September 2012 (EATG/DAH/IPPF/HIV in Europe)

This international conference on the criminalisation of HIV non-disclosure, potential or perceived HIV exposure and non-intentional HIV transmission took place at the Rotes Rathaus in Berlin on 20th September 2012. HIV advocates, law and human rights experts and other concerned stakeholders – including parliamentarians, prosecutors, clinicians and representatives of UNAIDS and UNDP – shared information regarding the current legal situation in Europe and Central Asia and explored ways to ensure a more appropriate, rational, fair and just response.

Video produced by Nicholas Feustel, georgetown media, for the HIV Justice Network.

Europe is second only to North America as the region with the most convictions. In recent years, some countries such as Denmark, Norway and Switzerland have started to revise their legislation. “These are encouraging signs“, says Edwin Bernard, project leader of the seminar, co-ordinator of the international HIV Justice Network and a member of the European AIDS Treatment Group. “In contrast, we are very concerned about developments in countries like Romania, which recently enacted an HIV-specific criminal law, or in Belgium, where new legal precedents were created allowing prosecutions for the first time. We are also hearing news about absurd and problematic trials for perceived HIV exposure in Austria. The conference was designed to help advocates move forward in these particularly repressive countries.”

Professor Matthew Weait presents his initial analysis of advocacy against HIV criminalisation in Scandinavian and Nordic countries

The conference took place on the occasion of the twentieth anniversary of the European AIDS Treatment Group (EATG). The meeting was co-organised with Deutsche AIDS-Hilfe (DAH), the International Planned Parenthood Federation (IPPF), and HIV in Europe, a multi-stakeholder initiative exchange on activities to improve early diagnosis and earlier care of HIV across Europe.

Watch the video on the HIV Justice Network Vimeo site here.
Download the agenda here.
Download the concept note here.
The meeting report is available here.

Norway: Long awaited Law Commission report disappoints

The long-awaited report from the Norwegian Law Commission, released last Friday, has shocked and disappointed HIV and human rights advocates in Norway and around the world.

After spending almost two years examining every aspect of the use of the criminal law to punish and regulate people with communicable diseases (with a specific focus on HIV) the Commission has recommended that Norway continues to essentially criminalise all unprotected sex by people living with HIV regardless of the actual risk of HIV exposure and regardless of whether or not there was intent to harm. The only defence written into the new draft law is for the HIV-negative partner to give full and informed consent to unprotected sex that is witnessed by a healthcare professional.

As highlighted in this news story from NAM, low or undetectable viral load will provide no defence to “exposure” charges (although the Commission has recommended that it may be a mitigating fact during sentencing). However, in contrast to the recent Supreme Court of Canada ruling, condoms alone will continue to suffice as a defence.

Given the importance of this report – and its many internal inconsistencies that result in a recommendation for a new law that will actually make it easier to prosecute people with HIV for low- (or no-) risk sex, such as the current oral sex prosecution of Louis Gay – I will be writing a series of stories examining different aspects. In the coming days, there will detailed analysis of the Commissions’ report from Professor Matthew Weait as well as an interview with the dissenting Commission member, Kim Fangen.

Health and Care Services Minister, Jonas Gahr Støre, is presented with the report from Law Commission chair, Professor Aslak Syse on Friday 19th October 2012. (Source: Norwegian Ministry of Health and Care Services)

Background

Since the first prosecution in 1995, Norway has been using a 110 year-old law to prosecute potential or perceived HIV exposure or HIV transmission, which has the the primary aim of protecting public health.

With the exception of one prosecution each for hepatitis B and hepatitis C transmission, the law has only been used in relation to HIV, and so consequently, paragraph 155 of the Norwegian Penal Code is usually referred to as ‘the HIV paragraph’. There is no consent nor ‘safer sex’ defence in this law, which essentially criminalises all sex by people with HIV.

A new penal code was adopted in 2005 that added a consent defence for “spouses” or other couples living together on a steady basis – and the discussion text further noted that condom use should also be a defence. However, this has not been enacted due to its being roundly criticised by many HIV and human rights groups in Norway and beyond – including by South African Constitutional Court Justice, Edwin Cameron – as being overly draconian and hypocritical given Norway’s role as an arbiter and defender of international human rights.

Consequently, in December 2010, the Norwegian Government appointed a law commission on penal code and communicable diseases to assess whether or not a criminal law was necessary, and if so, what should be criminalised. The Commission consisted of 12 members, including medical and legal practitioners, scientists and academics with backgrounds in sexuality, ethics and human rights, as well as one HIV activist, Kim Fangen.

Kim spoke about the work of Commission – and its potential impact – at the recent international conference on the criminalisation of HIV non-disclosure, potential or perceived HIV exposure and non-intentional HIV transmission that took place in Berlin. The meeting was co-organised by the European AIDS-Treatment Group (EATG), Deutsche AIDS-Hilfe (DAH), the International Planned Parenthood Federation (IPPF), and HIV in Europe.

At the meeting, Kim noted: “It surprised the Commission and many others that people are still being prosecuted under this paragraph [155] when another paragraph was adopted…in 2005. The usual practice in Norway [and elsewhere] is to take into consideration the revised and adopted paragraph even if it’s not yet in force.”

The Commission met twelve times for up to three days at a time, and consulted with national and international experts on HIV and the law along with government representatives, health organisations, and people living with HIV. Some Commission members also participated in the UNAIDS expert meeting on HIV and the criminal law in Geneva, in August/September 2011, as well as the the high level international consultation on HIV and the criminal law held in Oslo in February 2012, which coincided with the Oslo Declaration meeting where two Commission members were present.

In other words, the Commission had every possible opportunity to come up with a report that would result in Norway leading the world in terms of a rational, proportionate, ethical and just response that balances public health with human rights. Instead – with the exception of Kim Fangen – they opted for the most conservative outcome possible, that appears to ignore much of the legal and scientific expertise presented to it, in favour of a law that they believe will act as a deterrent to risky sex and normalise the long-standing Norwegian traditional of promoting monogamous sexual relationships for procreation.

The report

The Norwegian Committee report, entitled ‘Of love and cooling towers’ (to reflect the report’s lesser focus on environmental health issues as well as on HIV and other communicable diseases) can be viewed or download here. Click here to read the substantial English summary online.

As expected, the report is long and detailed, and covers many aspects of regulating issues that have an impact on the public health. A substantial English-language summary is available. I have reproduced a summary (of summaries) of the Commission’s recommendations as they relate to HIV (and ostensibly other sexually transmitted infections) below.

The members of the Commission have divided opinions on whether the person-to-person transmission of infection should be covered by a special penal provision as is the case at present (section 155 of the 1902 Penal Code). One member proposes that this penal provision be repealed and that no new provision be added to the 2005 Penal Code, and that the provision already adopted in the 2005 Penal Code not enter into force.

The 11 other members find it clearly most appropriate to have a separate penal provision on direct and indirect person-to-person transmission of serious communicable diseases, including through sexual intercourse. This is proposed in the draft of section 237 on transmission of infection in the 2005 Penal Code. A separate provision of this nature makes it possible to introduce, in the text of the statute, impunity in cases where responsible behaviour has been displayed in terms of communicable disease control, and to establish rules for when consent will exempt a person from criminal liability. It is proposed that the threat of criminal prosecution should target the act of transmitting a communicable disease that causes significant harm to body or health, as well as blameworthy conduct that results in exposure of another person to the risk of being infected with such a disease.

Of these 11 members, a minority of two is in favour of a penalty only being applicable when infection is transmitted. The other nine members are of the opinion that the act of exposing another person to the risk of infection should also be punishable when the behaviour in question is blameworthy («on repeated occasions or through reckless behaviour») from the perspective of communicable disease control. This is also warranted for evidentiary reasons.

It is proposed that the threat of criminal sanctions for direct and indirect person-to-person transmission of infection should only apply to intentional and grossly negligent acts, contrary to section 155 of the 1902 Penal Code and section 237 of the 2005 Penal Code, which also cover simple negligence. The draft statute states that no penalty is applicable when proper infection control measures (such as use of a condom in connection with sexual intercourse) have been observed. Nor is a penalty applicable in the case of transmission of infection in connection with sexual activity when the person who has been infected or exposed to the risk of infection has given prior consent in the presence of health care personnel in connection with infection control counselling.

The special comments to the draft statute point out that the prosecuting authority should show restraint in cases of infection transmitted from mother to child, in connection with the use of shared injection equipment among drug users, in connection with sex work and between two infected persons, particularly when both of them are aware of their own and their partner’s infection status.

The proposal entails a certain decriminalisation and reduced criminalisation in relation to the current section 155, and a clarification of when penalties are not applicable. It is proposed that the penalty level be reduced somewhat. The current maximum penalty (six years’ imprisonment) is only to be maintained for aggravated transmission of infection, which will primarily apply in cases where the transmission of infection has caused loss of life, the infection was transmitted to two or more persons, or transmitted as a result of “particularly reckless behaviour”.

What next?

The report’s recommendations are just that – recommendations – and the final outcome may be very different. The process will take a further 18 months, and won’t be finalised until 2014.

In the coming months, the Ministry of Health and Care Services will, together with the Ministry of Justice and Public Security, thoroughly examine the report and recommendations which is classified as an ONR – Official Norwegian Report.

They will then produce an open hearing letter which will allow for further comment.

All the comments and any additional recommendations will then be taken into consideration before the two Ministries send their final recommendation to the Norwegian Parliament.

It is entirely possible that the Government may ignore these recommendations completely.

The Google-translated headline of the Norwegian-language Aftenposten story of July 24 2012 highlighting that two promiment MPs do not want any law that would criminalise potential or perceived HIV exposure or transmission.

In July, two prominent and influential MPs, Håkon Haugli (Labour) and Bent Høie (Conservative) came out in favour of no replacement for Paragraph 155.

If both parties support their positions, there would be a firm majority in Parliament to ignore the Commission’s recommendation and, instead, to repeal article 155 (and its 2005 replacements) and pass no new law at all.

As the experience of its Nordic neighbour, Denmark, has shown, the sky does not fall in – risky sex and new infections do not increase – when there is no law governing the behaviour of people with HIV, because, as numerous studies have found, the vast majority of people living with HIV are responsible; their behaviour is not influenced by criminal law; and most new infections emanate from undiagnosed HIV.

UNDP report looks at links between sex work, HIV and the law

New UN report takes a stark look at links between sex work, HIV and the law in Asia and the Pacific 18 October, Bangkok — Nearly all countries of Asia and the Pacific criminalize some aspects of sex work.