US: Obama administration calls for end to HIV-specific criminal laws

Fantastic news from the United States, courtesy of Todd Heywood at the Michigan Messenger. His article is reproduced in full below.

On Thursday I present my poster at AIDS 2010 analysing two years of US arrests and prosecutions, so this is extremely timely, and very exciting. It is also the first time I have added a ‘decriminalisation’ label to my keywords – a significant milestone!

From the National HIV/AIDS Strategy for the United States, July 2010.

An important step we can take is to ensure that laws and policies support our current understanding of best public health practices for preventing and treating HIV. At least 32 states have HIV-specific laws that criminalize behavior by people living with HIV. Some criminalize behavior like spitting and biting by people with HIV, and were initially enacted at a time when there was less knowledge about HIV’s transmissibility. Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status. Some laws criminalize consensual sexual activity between adults on the basis that one of the individuals is a person with HIV who failed to disclose their status to their partner. CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist. While we understand the intent behind such laws, they may not have the desired effect and they may make people less willing to disclose their status by making people feel at even greater risk of discrimination. In some cases, it may be appropriate for legislators to reconsider whether existing laws continue to further the public interest and public health. In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.

Recommendation 3.3 Promote public health approaches to HIV prevention and care: State legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.

Obama administration calls for end to HIV-specific criminal laws
Advocates call new strategy a ‘wonderful development’

By Todd A. Heywood
Michigan Messenger
7/20/10

Many HIV experts and advocates are applauding the nation’s first comprehensive National HIV/AIDS Strategy, issued on July 13 by the White House, because it calls for an end to state laws that criminalize the transmission of HIV.

Those laws date back to the late 1980s and early 90s, when the death toll from HIV infection was mounting and no medications were readily available to treat the viral infection.

“In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment,” the report says, after acknowledging the rationale behind passage of such laws. “CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist.”

Michigan is one of 32 states with HIV-specific criminal laws. In Michigan, it is a felony for a person with HIV infection to engage in sexual penetration “however slight” without first disclosing their HIV-positive status to the sex partner. The law includes the use of sex toys, which have never been shown to be a route of transmission for HIV. It does not, however, include sharing needles, which is an extremely effective way to transmit the virus, experts say.

National experts weigh in

“It is the first truly meaningful official statement on the issue of criminalization and the role of civil rights in addressing the HIV epidemic, and reflects both the advocacy of HIV civil rights advocates who consistently prioritized the issue, and the willingness of ONAP (Office of National AIDS Policy) staff to respond substantively and decisively,” Catherine Hanssens, executive Director of the HIV Law and Policy Center in New York.

Hanssens pointed out how the strategy’s implementation plan — which is a companion document to the strategy — goes beyond merely advising legislatures to re-visit their HIV-specific laws and contains specific goals to address HIV criminalization, including study by the Department of Justice.

“Individually and collectively, these actions can and should produce findings that HIV-specific criminal laws and prosecutions contravene prioritized public health goals; subject people with HIV to irrational, exceptionalist treatment and punishment solely on the basis of their known HIV status, and also consequently represent a violation of federal antidiscrimination laws created to protect those affected by HIV,” said Hanssens.

Bebe Anderson, director of the Lambda Legal Defense and Education Fund’s HIV Project, echoed Hanssens, calling the strategy and its implementation plan a “wonderful development.”

But she says individual states may struggle with addressing the laws.

“I think it will depend on each state and the political environment,” she noted.

Michigan lawmakers divided on HIV-specific criminal law

Anderson’s statement is reflective of the political reality in Michigan today. With the state House controlled by Democrats and the state Senate controlled by Republicans, lawmakers say that while these changes might be necessary, they will be difficult to achieve.

“If they don’t work, then we have to revisit them,” said House Speaker Andy Dillon of Redford Township of the HIV-specific criminal laws.

“Absolutely, we need to revisit them,” said Rep. Joan Bauer (D-Lansing). “I am open to looking at what is working and what is not.”

Mark Meadows (D-East Lansing) chairs the House Judiciary Committee and he too said he would revisit the laws. He said he felt it was still important to revisit Michigan’s bio-terrorism law to clarify it after a 45-year-old HIV-positive Clinton Township man was charged with the law for allegedly biting a neighbor during a fight. Those charges have since been dismissed by Macomb County Circuit Court Judge Peter Maceroni.

Meadows said prosecutions such as the Macomb case increase stigma against the HIV-positive community. He previously has called that prosecution “silly.”

But Republican law makers say not so quick.

State Sen. Tom George (R-Texas Township) chairs the Senate Health Policy Committee.

“I see these (calls to address specific laws– such as the HIV-specific criminal laws or nondiscrimination laws) as more of a political agenda and less of a public health issue,” George said. “I don’t think changing that or revisiting that is going to make a big difference like testing will.”

George, who is seeking the Republican nomination for governor and is a physician, is pushing legislation which will change Michigan’s law on HIV testing, which requires signed informed consent before an HIV test can be conducted. His legislation would make Michigan an opt-out state, meaning patients would give general consent for HIV testing when consenting for care and treatment. They could opt out of HIV testing, but only in writing.

Rep. Rick Jones (R-Grand Ledge) serves on the House Judiciary Committee. And while he has been a vocal critic of the HIV-as-terrorism prosecution, and previously said he was in favor of repealing the state criminal law on HIV disclosure, now says he no longer favors the move.

“After careful consideration and listening to the feelings of my constituents, I think you should have to disclose it,” says Jones. “Should it just be HIV? Absolutely not. It should include things that are much easier to transmit like Hepatitis and TB.”

Jones is the former sheriff of Eaton County and says he thinks that an HIV-positive person spitting at a police officer, and declaring the hope the officer is infected, should be criminalized, even though there is no known risk of infection from the act.

“It shows intent,” Jones said.

The National HIV/AIDS Strategy specifically cites criminalizing spitting as a concern.

“Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status,” the report states.

Jones admitted it is a crime already in Michigan to spit on a police officer, noting that he vividly recalled while a road officer having a suspect spit at him. That man, Jones said, ended up serving 30 days in jail for the incident.

Regardless of the how debate starts shaping up in Michigan, don’t expect the Michigan Department of Community Health to step into the fray anytime soon, says Debra Szwedja, acting director of the MDCH’s Division of Health, Wellness and Disease Control.

“Really, at this point in time, that is something the legislature will have to initiate,” Szwedja said.

UK: New Guidance for Police Investigating Criminal Transmission of HIV

I’m reproducing below a press release issued yesterday by the National AIDS Trust (NAT) about the new UK (with the exception of Scotland) guidance for police officers investigating allegations of criminal HIV transmission. We’ll hear more about the guidance – a world’s first – and how it was developed, at the International AIDS Conference in Vienna which begins on Sunday.

Police and HIV sector work together to produce guidance

New guidance has been produced to help police when investigating allegations of criminal transmission of HIV. The guidance provides police officers with basic facts about HIV and sets out advice on how to deal with complaints about reckless (or intentional) transmission of HIV in a fair and sensitive manner.

The new guidance from the Association of Chief Police Officers (ACPO) was developed by a working group which included police officers, representatives of the Crown Prosecution Service and the National Policing Improvement Agency, and the National AIDS Trust. Police across England, Wales and Northern Ireland will be expected to follow new guidance.

Ellie O’Connor, Detective Chief Inspector of the Metropolitan Police, comments;

“Investigations into the criminal transmission of HIV are extremely rare but we know they cause a lot of anxiety for the individuals involved. It is important police officers have an understanding HIV and what to do should someone make a complaint.

In producing this guidance we listened to the concerns of the HIV sector and worked in partnership with them. We strongly encourage all police forces to disseminate this guidance and ensure officers know to access it when a case occurs.”

Deborah Jack, Chief Executive of NAT, comments;

“Criminal investigations into HIV transmission worry many people with HIV, even though they occur only very occasionally. We are pleased that we have been able to work together with the police to produce guidance for their officers. The Association of Chief Police Officers took the issue very seriously.

The resulting guidance sets out a fair way to deal with these investigations that keeps in mind the particular sensitivities of HIV. This new guidance should serve to reduce the number of police investigations and reassure people living with HIV of what they can expect in the unlikely circumstance this occurs.”

For further information about this issue NAT and THT have produced a leaflet for people living with HIV – Prosecutions for HIV Transmission: A guide for people living with HIV in England and Wales.

Under the new guidance for police investigating criminal transmission of HIV, people living with HIV can expect:

to be treated supportively.

for their confidentially to be respected.

an investigation of reckless transmission only to be pursued if a complainant has been infected with HIV

for the case to be continually discussed with the Crown Prosecution Service to ensure only legitimate complaints are pursued.

contact with any other individuals relevant to the case to be initiated by trained staff at GUM clinics.

and uninterrupted access to medication in the event of being taken into custody.

If someone reports to police concerned that they have been exposed to HIV in the past 72 hours they will be referred to an open sexual health clinic or the nearest hospital Accident and Emergency Department to ask for PEP.

For a background study of early police investigations of alleged cases of HIV transmission see Policing Transmission by Terrence Higgins Trust.

Austria: AIDS 2010 delegates warned about criminal HIV exposure laws; law clarified but not binding

The organisers of the International AIDS Conference, due to be held in Vienna from next Sunday (18th July), have today provided an important update on Austria’s criminal HIV exposure and transmission laws.

They recommend that anyone who is aware they are living with HIV practice safer sex and safer injecting practises whilst in Austria to minimise the legal risks.

Although the Austrian Ministry of Justice has issued various opinions clarifying the law on HIV exposure and transmission – including recognising that sex with a condom or unprotected sex with an undetectable viral load is not a criminal offence – and that this is a “firm directive to the courts, it should be noted that it does not actually change the law and is not necessarily binding on the courts. As such, conference delegates are advised to always adopt safer sex practices to protect their health, minimize the risk of transmission and the associated legal risks.”

Full statement below.

Statement on Austrian Laws Impacting People Living with HIV/AIDS (PLHIV)
from AIDS 2010, GNP+ and ICW

Local and international organizers for the XVIII International AIDS Conference (AIDS 2010) look forward to welcoming delegates to Vienna this month.

As delegates plan their stay in Vienna, this short statement provides an overview of some Austrian laws that impact on people living with HIV/AIDS (PLHIV). The organizers of AIDS 2010 recommend that conference delegates read this statement to understand their legal position with respect to these areas of law.

There are two key points in this statement:

Intentional and negligent acts capable of transmission of HIV are criminal offences in Austria

Legal risks can be minimized through safer sex and safer injecting practices

Intentional and negligent acts capable of transmission of HIV are criminal offences in Austria

The Austrian Penal Code provides that it is a criminal offence to commit an act which is capable of causing the danger of spreading an infectious disease. Under the law, the disease must be reportable or notifiable. HIV is considered such an infectious disease, along with Hepatitis C, tuberculosis and gonorrhoea. An ‘act’ capable of causing danger includes sexual activity such as vaginal or anal intercourse, oral intercourse or heavy kissing where there is biting or open wounds. An ‘act’ could also include the sharing of injecting equipment.

If the act is carried out with the intent of spreading the disease then the penalty is a maximum three years imprisonment or a financial penalty. If it is an act of negligence, then the penalty is a maximum of one-year imprisonment or a financial penalty.

Under Austrian law, the following factors are irrelevant in establishing a criminal offence:

Whether the disease was actually transmitted. The key point is whether the act caused danger. This can be a real danger or an abstract (hypothetical) danger.

Whether the person carrying out the act thought, ‘without good cause’ (negligently), that the other person already carried the disease. [Note that if person who carried out the act thought ‘with good cause’ (not negligently) the other person was already infected, then the act is not a criminal offence.]

Whether the other person consented to the act.

Whether the person who carried out the act disclosed his/her disease, although this may reduce the severity of the penalty.

The Global Criminalisation Scan prepared by GNP+ shows that there have been at least 40 prosecutions in Austria resulting in at least 30 convictions. [Note that GNP+ has noted the lack of reliable data as a problem.]

It is important to note that a broad range of organisations now agree that laws that criminalise HIV transmission violate human rights and undermine public health interventions, including HIV prevention initiatives.

Legal risks can be minimized through safer sex and safer injecting practices

There have been a number of developments in Austrian case law that provide greater legal clarity on how PLHIV can minimize their legal risks in relation to the transmission of HIV. This legal information has been kindly provided by Dr Helmut Graupne r, an Attorney at Law specializing in sexuality and the law in Austria.

In the lead up to AIDS 2010, the Ministry of Justice has issued an opinion clarifying the law on HIV transmissions. Whilst this opinion is a firm directive to the courts, it should be noted that it does not actually change the law and is not necessarily binding on the courts. As such, conference delegates are advised to always adopt safer sex practices to protect their health, minimize the risk of transmission and the associated legal risks.

For a person living with HIV, sexual intercourse with a condom does not constitute a criminal offence. The Supreme Court of Austria has issued a decision that sexual intercourse with a condom for a PLHIV does not constitute a criminal offence. Please note that the case law on sexual intercourse with a condom only concerns vaginal intercourse and not anal intercourse, however, the opinion of the Ministry of Justice provides that this applies to anal intercourse too.

Oral intercourse (PLHIV giving) without a condom does not constitute a criminal offence. Austrian courts have found that oral intercourse from a PLHIV to another person without a condom does not constitute a criminal offence. However, there is no case law concerning oral intercourse from an HIV-negative person to a PLHIV, so the legal position in this case remains unclear. Such intercourse should not constitute a criminal offence if safer sex practices are observed and no ejaculation into the mouth takes place. However, an HIV positive person ejaculating into the mouth of someone who is HIV negative may constitute a criminal offence. [An element of HIV transmission law in Austria is ‘abstract’ risk or hypothetical risk. Whilst there have been no cases concerning oral intercourse from an HIV-negative person to a PLHIV, due to the abstract risk element of the law, we have been advised to include this advice in the statement.]

If a PLHIV has an undetectable viral load, unprotected sexual intercourse does not constitute a criminal offence. The Ministry of Justice has provided a firm opinion that if the PLHIV has an undetectable viral load and is consistently following an effective ART regimen then sexual intercourse without a condom does not constitute a criminal offence, given that such persons are not infectious. Please note that the opinion is not binding on the courts. As such, delegates are advised to adopt safer sex practices even if they have an undetectable viral load.

The AIDS 2010 organisers recommend that all conference participants practice safer sex and safer injecting practices to protect their health, minimize the risk of transmission and the associated legal risks.

There are no restrictions in Austria for PLHIV in accessing public spaces
The Vienna public transportation system (Wiener Linien) has no regulations denying PLHIV the right to use the system and there has never been a reported incident of denied service to a PLHIV. Further, regulations denying entry to those with contagious diseases to public swimming facilities in Vienna were removed recently.

Conference organizers are grateful to representatives of the Austrian Government, the City of Vienna and the Austrian Parliament for their efforts to work with us to clarify Austrian laws impacting PLHIV. We are also grateful to them for all the other support given to the conference to make it a success.

Global: UNAIDS/UNDP supports Swiss statement, announces new Global Commission on HIV and the Law

Following on from yesterday’s post about the report by the UN Special Rapporteur on the Human Right to Health, on the impact of criminalisation, UNAIDS and UNDP have issued a statement welcoming the report. (Click here for the pdf: full text below)

One of the most intriguing things about this statement is its recognition that antiretroviral therapy significantly reduces the risk of infection on an individual level, something UNAIDS has not previously supported.

It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.

The footnote following the phrase “greater impacts for individuals” states:

The Swiss National AIDS Commission (EKAF) has stated that “an HIV-infected person on antiretroviral therapy with completely suppressed viraemia (‘effective ART’) is not sexually infectious, i.e. cannot transmit HIV through sexual contact.” However, the Commission qualifies its statement, noting that it is considered valid only so long as: (a) the person adheres to antiretroviral therapy, the effects of which must be evaluated regularly by the treating physician, and (b) the viral load has been suppressed (below 40 copies/ml) for at least six months, and (c) there are no other sexually transmitted infections. See P Vernazza et al (2008), “Les personnes séropositives ne souffrant d’aucune autre MST et suivant un traitment antirétroviral efficace ne transmettent pas le VIH par voie sexuelle”, Bulletin des médecins suisses 89:165-169. Available on-line at http://www.saez.ch/pdf_f/2008/2008-05/2008-05-089.PDF

This contrasts with the extremely non-committal statement UNAIDS made jointly with WHO immediately after the Swiss Statement.

But that’s all water under the bridge, I guess. Yes, any laws that prevent people from knowing their status and accessing treatment are bad. But we must fight to ensure that treatment’s impact on infectiousness is always a secondary factor to the individual’s choice regarding whether and when to start treatment. Treatment must be treatment first, prevention second. That’s a big part of the work I’m currently doing for GNP+ and UNAIDS producing a new framework for positive prevention known as Positive Health, Dignity and Prevention.

Another significant part of the UNAIDS/UNDP statement is the first public announcement of a new Global Commission on HIV and the Law (which had been called the International Commission on HIV and Law or ICAL in documents I’d previously seen) “which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations.”

The Commission will be officially launched later this month.

Statement by the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations Development Programme (UNDP)

14th Session the Human Rights Council

Agenda Item 3: Promotion and protection of all human rights, civil,
political, economic, social and cultural rights, including the right to
development

7 June 2010
Geneva

Mr President, distinguished delegates, ladies and gentlemen,

The UNAIDS Secretariat and UNDP thank the Human Rights Council for the opportunity to speak under this agenda item. As this Council knows, for almost 30 years, the world has sought the most effective response to the HIV epidemic. This challenge has repeatedly shown that a human rights-based approach to HIV is the most effective approach to HIV.

This fact has been long recognized by the Commission on Human Rights, this Council and by Member States. This is because human rights and legal protections are essential to enable people to get the HIV information and services they need, to avoid infection, and if HIV positive to disclose their status and get treatment. It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.

Many States continue to criminalize sexual minorities, people who use drugs, people
who engage in sex work, as well as people living with HIV. The result is that thousands of people fear or are unable to get tested for HIV, to disclose their HIV status, to access HIV prevention, treatment and care. This puts both these groups and the larger public at risk. Under these circumstances, universal access to HIV prevention, treatment, care and support will not be realised; and we will not achieve many of the Millennium Development Goals.

Because of this, the Executive Director of UNAIDS, Michel Sidibé, has made one of the corporate priorities of UNAIDS to support countries to “remove punitive laws, policies, practices, stigma and discrimination that block effective AIDS responses.”

For these reasons, the UNAIDS Secretariat and UNDP welcome the report of the Special Rapportueur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. We hope it will help to generate constructive debate, and catalyse change toward a more rights-based and effective AIDS response.

The report of the Special Rapporteur underlines how the criminal law, when misused, can and does have a very negative impact on the right to health. When the criminal law is applied to adults engaging in private consensual sexual behavior – whether in the context of same-sex sexual orientation or in the context of the exchange of money for sex – it also violates the rights to privacy and liberty and acts as a major impediment to HIV prevention and treatment. Where overly broad criminal laws are applied to people living with HIV, the impact is in direct contradiction to public health efforts to encourage people to come forward to get on treatment and practice safe sex, and reduce HIV transmission in the context of drug use.

The UNAIDS Secretariat and UNDP are fully aware that, in many societies, these issues are the subject of much social, cultural and religious debate. However, the UNAIDS Secretariat and UNDP are concerned that criminalization of aspects of private, consensual adult sexual conduct singles out particular groups for invidious treatment, undermines individual and public health, and transgresses various international human rights norms. Thus, for public health and human rights reasons, the UNAIDS Executive Director and the United Nations Secretary General have called for the removal of punitive laws, policies and practices that hamper the AIDS response. Successful AIDS responses do not punish people, they protect them.

UNDP, on behalf of UNAIDS, is launching the Global Commission on HIV and the Law, which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations. The UNAIDS Secretariat and UNDP greatly hope that this Commission will help States and civil society to better use law, law enforcement and access to justice to protect all people from HIV and its impact, as well as from human rights violations in the context of HIV. We look forward to bring to the Council the findings of the Commission at the end of 2011.

Thank you.

Global: UN ‘Criminalisation undermines the Human Right to Health’

One of the most significant documents produced so far on the criminalisation of HIV non-disclosure, exposure and transmission was published today by the United Nations.

It is a report by Anand Grover, the UN Special Rapporteur on the Human Right to Health, specifically the right of everyone to enjoy the highest attainable standard of physical and mental health.

His report highlights the many human rights arguments against the use of the criminal law to prosecute anything except the intentional (i.e. proved beyond a reasonable doubt in a court of law that transmission was intended and malicious).

It begins with a very forceful statement.

… the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health. The criminalization of HIV transmission, or behaviours around transmission, is generally recognized as counterproductive, and should be reconsidered in the context of any comprehensive HIV/AIDS response framework.

It then examines the various ways that HIV transmission has been criminalised around the globe before examining the effect on the right to health. It ends with a bang, too.

Informed individuals take steps to prevent HIV transmission irrespective of criminal laws around transmission, and there is little evidence that specific laws criminalizing HIV transmission deter or modify the behaviour of individuals. With little benefit demonstrated in terms of achieving the aims of the criminal law or public health, and a corresponding risk of alienation, stigmatization and fear, it is difficult to see why the criminalization of HIV transmission is justified at all. Laws that are unnecessarily punitive will undermine any public health response to HIV, rather than assist it.

The entire document also includes an examination on the criminalisation of same-sex behaviour, sexual orientation and gender identify as well as sex work, and can be downloaded in full from the Office of the High Commissioner for Human Rights.

For your convenience, I have included pretty much the entire section on the criminalisation of non-disclosure, exposure and transmission below, complete with paragraph numbers, for easy quoting.

A webcast of Mr Grover’s 13 minute speech to the UN General Assembly can be found here. Disappointingly, just one minute is dedicated to the criminalisation of non-disclosure, exposure and transmission (at 2:24).

Nevertheless, this report, and Mr Grover’s speech, is significant in the history of criminalisation, and should be considered a major victory for anti-criminalisation advocates around the world.

Now, we just have to remind our goverments and policymakers to heed his words…

United Nations General Assembly

Human Rights Council

Fourteenth Session

A/HRC/14/20

27 April 2010

Agenda item 3

Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover.

HIV transmission

51. The Special Rapporteur notes that the criminalization of HIV transmission has formed a part of the global response to the HIV/AIDS crisis since its inception. Unfortunately, the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health. The criminalization of HIV transmission, or behaviours around transmission, is generally recognized as counterproductive, and should be reconsidered in the context of any comprehensive HIV/AIDS response framework.

Effects of criminalization on the right to health

No impact on behaviour change or HIV spread

62. The Special Rapporteur notes that criminal laws that explicitly regulate the sexual conduct of people living with HIV have not been shown to significantly impact on sexual conduct, nor do they have a normative effect in moderating risk behaviours. Criminal law does not influence the circumstances in which most HIV transmission occurs. In many regions, the majority of people living with HIV are unaware of their positive status and most cases of HIV transmission occur through consensual sex. Private sexual conduct invariably persists in the face of possible prosecution, but when prosecution actually occurs, these behaviours are driven underground, providing less opportunity for regulation and inhibiting access to preventive activities, diagnostic services, treatment and support.

Undermining existing public health efforts

63. Criminalization of HIV transmission or exposure places legal responsibility for HIV prevention exclusively on those already living with HIV, undermining the notion of shared responsibility between sexual partners, and potentially creating a false sense of security amongst those who are HIV-negative.86 Criminalization also has the potential to discourage HIV testing, which is a core component of successful HIV/AIDS health initiatives. An additional barrier to access to services could be manifested through increased distrust in relationships with health professionals and researchers, impeding the provision of quality care and research, as people may fear that information regarding their HIV status will be used against them in a criminal case or otherwise. As the prevalence of high-risk sexual behaviour is significantly lower in individuals aware of their seropositive status, any laws that discourage testing and diagnosis have the potential to increase the prevalence of risky sexual practices and HIV transmission.

Disproportionate impact on vulnerable communities

64. In jurisdictions where HIV transmissions have been prosecuted, of the very few cases that are prosecuted out of the many infections that occur each year, the majority have been noted to involve defendants in vulnerable social and economic positions. Although laws criminalizing HIV transmission and exposure were, on occasion, enacted to provide women with greater protection, applying these laws broadly has also resulted in women being disproportionately affected. For instance, a woman was prosecuted under section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 for having unprotected sex while HIV-positive, despite HIV not even being transmitted to the “victim” in question.

65. Women often learn they are HIV-positive before their male partners because they are more likely to seek access to health services and are consequently blamed for introducing the infection into communities. For many women, it is also difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences. Women may therefore face prosecution as a result of their failure to disclose, despite having valid reasons for non-disclosure. These laws do not provide women with any additional protection against violence or assurance of their rights to sexual decision-making and safety, and do not address the underlying socioeconomic factors that increase women’s vulnerability.

Criminalization of mother-to-child transmission

66. Some countries have enacted laws that criminalize mother-to-child transmission explicitly (see paragraph 54 above) or implicitly due to overly broad drafting of the law. Where the right to access to appropriate health services (such as comprehensive prevention of mother-to-child transmission services and safe breastfeeding alternatives) is not ensured, women are simply unable to take necessary precautions to prevent transmission, which could place them at risk of criminal liability. […]

Stigma, discrimination and violence

68. Stigma represents a major impediment to the implementation of successful interventions in respect of HIV/AIDS. Applying criminal law to HIV exposure or transmission can reinforce the stereotype that people living with HIV are immoral and irresponsible, further entrenching HIV-related stigma. People living with HIV/AIDS may, in turn, internalize the negative responses of others. This self-stigmatization affects the sense of pride and worth of individuals, which can lead to depression and self-imposed withdrawal, hampering access to HIV/AIDS treatment and interventions. In this way, criminalization impedes the right to health by constructing barriers to access by creating an environment in which individuals feel as if they are not deserving of treatment.

69. Discrimination against those affected by HIV/AIDS is one of the manifestations of stigma. For those living with HIV, actual and feared discrimination acts as a barrier to HIV-specific health services, including testing, anti-retroviral therapy and services in the prevention of mother-to-child transmission, in addition to broader health services.

70. The Special Rapporteur notes that individuals living with HIV have been convicted of crimes that did not actually inflict physical harm, damage any property or otherwise cause injury. Disproportionate severity in sentencing of those convicted of “HIV crimes” has become evident in a number of cases, the inference being that the defendants’ HIV status played a significant role in conviction and imprisonment. Criminal prosecutions, and the publicity stemming from them, have been found to increase stigmatization and have been perceived by people living with HIV as undermining public health efforts encouraging safer sex.

71. The criminalization of HIV transmission also increases the risk of violence directed towards affected individuals, particularly women. HIV-positive women are 10 times more likely to experience violence and abuse than women who are HIV-negative.

Right-to-health approach

72. The Special Rapporteur emphasizes that any domestic legislation concerning HIV transmission should be based on a right-to-health approach; that is, States must comply with their obligations to respect, protect and fulfil the right to health through the enactment of such legislation. Most relevantly, the obligation to protect requires States to take measures to protect all vulnerable or marginalized groups of society, and the obligation to fulfil similarly requires steps to assist individuals and communities to enjoy the right to health – particularly those who are unable to realize the right themselves.

73. Any law concerning HIV transmission should therefore be directed at issues around public infrastructure, access to medicines, information campaigns concerning HIV/AIDS and so forth. The criminalization of HIV transmission should not form the mainstay of a national HIV/AIDS response, and its necessity is questionable in any event. Informed individuals take steps to prevent HIV transmission irrespective of criminal laws around transmission, and there is little evidence that specific laws criminalizing HIV transmission deter or modify the behaviour of individuals. With little benefit demonstrated in terms of achieving the aims of the criminal law or public health, and a corresponding risk of alienation, stigmatization and fear, it is difficult to see why the criminalization of HIV transmission is justified at all. Laws that are unnecessarily punitive will undermine any public health response to HIV, rather than assist it.

74. As such, criminalization should be considered permissible only in cases involving intentional, malicious transmission. The criminalization of any lesser mens rea is not only inappropriate, but also it is counterproductive in the struggle against the spread of HIV. In the view of UNAIDS:

Criminal law should not be applied where there is no significant risk of transmission or where the person:

• Did not know that he/she was HIV-positive

• Did not understand how HIV is transmitted

• Disclosed his/her HIV-positive status to the person at risk (or honestly believed the other person was aware of his/her status through some other means)

• Did not disclose his/her HIV-positive status because of fear of violence or other serious negative consequences

• Took reasonable measures to reduce risk of transmission, such as practising safer sex through using a condom or other precautions to avoid higher risk acts

• Previously agreed on a level of mutually acceptable risk with the other person

75. Finally, domestic laws prohibiting the deliberate spread of any disease or assault, or laws concerning the age of consent, adequately cover intentional transmission of HIV should the need arise to prosecute cases where this has occurred. The use of these preexisting laws provides a legal safeguard to potential victims, without unnecessarily stigmatizing and further marginalizing those affected by HIV within the jurisdiction. States should, in addition to using pre-existing laws, issue guidelines to ensure that these laws are only utilized in cases of intentional transmission and that the relevant mens rea is to be established beyond a reasonable doubt.

Recommendations

76. The Special Rapporteur calls upon States:

[..]

(c) To immediately repeal laws criminalizing the unintentional transmission of or exposure to HIV, and to reconsider the use of specific laws criminalizing intentional transmission of HIV, as domestic laws of the majority of States already contain provisions which allow for prosecution of these exceptional cases.

Asian AIDS Law Database Launches Online – press release

Asia Catalyst is proud to announce the “public beta” launch of its Asian AIDS Law Database. The database is a free, user-friendly resource, searchable in Chinese and English, to help researchers to find HIV/AIDS-related statutes throughout Asia. It is the first database exclusively dedicated to this purpose.

With the “public beta” launch, Asia Catalyst invites lawyers, experts and organizations to share AIDS-related laws and policies from around Asia that may not yet be online. The database has over 100 records, ranging from Cambodia’s draft law on drug control to the national policy on HIV/AIDS of Bangladesh.

“The database will enable lawyers to analyze AIDS-related laws, and use them in their own advocacy,” said Ken Oh, editor of Asia Report (http://www.yazhoudiaocha.com), the news site that hosts the database. “Asian AIDS activists tell us that some governments are more responsive to model language from another Asian law.”

The project was born in response to growing demand from Asian AIDS advocates engaged in legal analysis and advocacy. The database was created by a volunteer team of law students and pro bono lawyers working with Asia Catalyst.

Asia Report, the Asia Catalyst-sponsored site that hosts the database, provides Chinese and English-language news about economic and social rights in North, South and Southeast Asia, with links to Asian rights groups, and announcements of upcoming conferences and events.

Asian AIDS Law Database users may choose countries, topics and levels of government from drop-down menus in both English and Chinese. The database will provide the text of the law or policy and a link to its location online. All records are in English, with Chinese translations provided where available.

“The international AIDS law field is growing quickly,” said Ken Oh.“We hope our colleagues in Asia will use the database to analyze existing laws – and draft new ones.”

The database may be visited at http://www.yazhoudiaocha.com/laws/

Asia Catalyst is a US-based resource for grassroots organizations working on HIV/AIDS in Asia. For more information, please see our website at www.asiacatalyst.org.

Global: Ten reasons why criminalisation of HIV exposure or transmission harms women

A new pamphlet released to coincide with World AIDS Day highlights why criminalisation is bad for women and girls, despite policymakers believing they are enacting new HIV-specific laws in order to protect them.

In addition to criminalizing the transmission of HIV, these laws sometimes call for mandatory HIV testing of pregnant women, as well as for non-consensual partner disclosure by healthcare providers; further exacerbating the impact of such legislation on women. The call to apply criminal law to HIV exposure and transmission is often driven by a well-intentioned wish to protect women, and to respond to serious concerns about the ongoing rapid spread of HIV in many countries, coupled with the perceived failure of existing HIV prevention efforts. While these concerns are legitimate and must be urgently addressed, closer analysis reveals that criminalization does not prevent new HIV transmissions or reduce women’s vulnerabilities to HIV. In fact, criminalization harms women, rather than assists them, while negatively impacting on both public health needs and human rights protections. Applying criminal law to HIV exposure is likely to heighten the risk of or transmission does nothing to violence and abuse women face; address the epidemic of gender-strengthen prevailing gendered based violence or the deep economic, inequalities in healthcare and family social, and political inequalities that settings; further promote fear and are at the root of women’s and girls’ stigma; increase women’s risks and disproportionate vulnerability to HIV.

It then details the ten reasons:

Women will be deterred from accessing HIV prevention, treatment, and care services, including HIV testing
Women are more likely to be blamed for HIV transmission
Women will be at greater risk of HIV-related violence and abuse
Criminalisation of HIV exposure or transmission does not protect women from coercion or violence
Women’s rights to make informed sexual and reproductive choices will be further compromised
Women are more likely to be prosecuted
Some women might be prosecuted for mother-to-child transmission
Women will be more vulnerable to HIV transmission
The most ‘vulnerable and marginalized’ women will be most affected
Human rights responses to HIV are most effective.

10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women was drafted by Dr. Johanna Kehler of the AIDS Legal Network, Michaela Clayton of the AIDS & Rights Alliance for Southern Africa, and Tyler Crone of the ATHENA Network.

You can download the pdf of the pamphlet here.

To endorse the document or for more information, please contact:

ATHENA Network: www.athenanetwork.org

AIDS Legal Network: www.aln.org.za

ARASA: www.arasa.info

Brazil: Health ministry says no to criminalisation following two high-profile prosecutions

Brazil’s Ministry of Health is preparing a public statement in which it recommends that prosecutions for negligent or reckless HIV exposure or transmission cease. Rather, only intentional transmission where both intent and transmission are proven, in accordance with UNAIDS guidance, should ever be prosecuted. The statement follows two high-profile prosecutions in São Paulo.

I first heard of this yesterday when the legal correspondent of Veja Magazine, the largest circulation magazine in Brazil (and fourth largest in the world), contacted me for information about other countries’ approaches to criminalisation for an article she is writing about the issue.

She told me that the first prosecution actually took place in 2004, but that the case has become a national issue since the man’s retrial, which ended two weeks ago. The case involves a married man who was charged with attempted murder for not disclosing his HIV status to his mistress during their three year affair, and who subsequently tested HIV-positive. His wife of 25 years knew he was HIV-positive and they always used condoms, and she is not a complainant. In the first trial, the Grand Jury found him guilty of attempted murder and he was sentenced to eight years in prison. This was upheld on appeal, but a second appeal based on a legal technicality led to a second trial in which he was charged, and found guilty of, the lesser charge of assault and sentenced to two and half years – time he had already served.

A second case involves another heterosexual man who has also been charged with attempted murder for having unprotected sex without disclosure with three women, two of whom subsequently tested HIV-positive. This case is ongoing and awaiting a decision from the Supreme Court.

What is significant is that Brazil’s government appears to be on a collision course with the judiciary. Although my Veja correspondent was vague about the Ministry of Health’s statement (she had not yet been able to interview them), I found this report from Odia/Terra online published on Tuesday which includes a quote from the Ministry of Health’s Eduardo Barbosa

According to Eduardo Barbosa, Deputy Director of the Department of STD, AIDS and Hepatitis from the Ministry of Health, in order for HIV transmission to be considered a crime the court must, in addition to proving intent, consider the existence of “psychosocial factors”, the stage of treatment of disease and the responsibility of the partner to protect themselves.

A ministry statement goes against a global trend to criminalize those who transmit the disease, according to Barbosa. “Some countries end up adopting such measures as if it were possible to isolate and blame in order to control the epidemic.”

This fits well with Brazil’s history of focusing on a human rights approach to HIV. In fact, the government is about to pass a new (protective) law which will punish anyone who discriminates against someone with living with HIV with up to four years in prison.

Bill 6124/05 criminalises anyone who promotes any act of discrimination, exclusion or restriction of people living with HIV in schools and kindergartens; in the workplace; and in healthcare settings. It also criminalises third party disclosure of someone’s HIV-positive status in these settings.

O reporter.com reports that

Bill 6124/05 was approved unanimously today [17 November] by the Committee on Constitution and Justice (CCJ) of the House of Representatives. The approval of the project, which was approved by the rapporteur, Congressman Regis de Oliveira (PSC-SP), will benefit about 630 thousand infected in Brazil…

“Nearly a decade after we first attempted to pass this law, the House of Representatives is finally close to creating a law that punishes any act of distinction, exclusion or restriction to people who are HIV-positive,” said Regis de Oliveira. During the debate, the proposition, which is being handled in the Committee on Constitution and Justice (CCJ), had the support of most lawmakers…

“It is important that society should identify the various forms of discrimination in order to eliminate them, helping to respect, protect and fulfill human rights. Discrimination threatens the rights of these citizens live in dignity, so that often they become victims of irreversible psychological damage, ” he concludes.

The bill now goes to the vote on the House floor.

I should have more details on the cases and the government’s official response next week.

Global: Human Rights Watch – Punitive Laws Threaten HIV Progress

Human Rights Watch today issued a press release to tie in with World AIDS Day – the theme of which is “universal access and human rights” – which highlights that punitive laws, including those that criminalise HIV transmission, threaten progress towards both of these important goals.

World AIDS Day: Punitive Laws Threaten HIV Progress

(New York) – HIV prevention efforts – and the promise of antiretroviral therapy as prevention – are being undermined by punitive laws targeting those infected with and at risk of HIV, Human Rights Watch said today on the eve of World AIDS Day.

This year’s World AIDS Day theme is “universal access and human rights,” tying together goals for universal access to HIV prevention, treatment, and care with recognition that respect for human rights is critical in the global response to AIDS. Achieving universal access to treatment has also been a key theme in debates over the past year around the use of antiretroviral treatment (ART) as a part of comprehensive HIV prevention strategies. Mathematical models have proposed that early initiation of universal antiretroviral treatment combined with HIV prevention programs could lead to the eventual elimination of HIV infection. “There is increasing evidence that antiretroviral treatment can be an important part of comprehensive prevention strategies,” said Joe Amon, Health and Human Rights director at Human Rights Watch. “But if human rights abuses are unaddressed and punitive laws target people vulnerable to or living with HIV, the potential of treatment as prevention isn’t going to be realized.”

In many parts of the world, legislation effectively criminalizes populations living with HIV or vulnerable to HIV infection, such as sex workers, drug users, and men who have sex with men. These laws fuel stigma and discrimination, increase barriers to HIV information and treatment, and contribute to the spread of disease, Human Rights Watch said. Elsewhere, laws criminalizing HIV transmission discourage HIV testing, potentially subjecting those who know their HIV status to criminal penalties while exempting those who are unaware of their infection.

In early November, Human Rights Watch released a 10-page critique of a proposed Ugandan HIV/AIDS law, which includes mandatory HIV testing, forced disclosure, and criminal penalties for the “attempted transmission” of HIV to another person. The Ugandan Parliament is also considering a bill that allows for a seven year prison term for any person or organization who supports or promotes lesbian, gay, bisexual, or transgender people’s rights. It would jail for up to three years anyone who fails to report a person they suspect of being lesbian or gay. A person living with HIV who has consensual homosexual sex would face the death penalty, regardless of risk of HIV transmission and even if their partner is also HIV-positive.

Since 2005, 14 countries in Africa have passed HIV-specific laws that potentially criminalize all sexual behavior among HIV-positive individuals, including those who use condoms, regardless of disclosure and actual risk of transmission. In a number of countries, maternal-to-child HIV transmission is a criminal offense, even where antiretroviral treatment may not be available. In Uganda, the draft legislation exempts HIV transmission before or during birth but allows for the prosecution of women whose infants acquire HIV from breast milk.

“HIV prevention has failed in many countries not because we don’t know how to design effective prevention programs, but because governments have been unwilling to implement these programs and ensure that they reach everyone,” Amon said. “The potential of HIV treatment in comprehensive prevention programs will be similarly sabotaged if governments continue to pass punitive laws and trample upon human rights.

Australia: New publication examines criminalisation; works as advocacy tool

NAPWA monograph:
click on image to download
There have been some very important policy developments in Australia recently that I’ve been waiting to post about until I’d finished reading the entire (Australian) National Association of People Living With HIV/AIDS (NAPWA) monograph, The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality, to which I contributed a chapter (as a co-author).

I’ve now read all eleven chapters and I have to say that the monograph is essential reading for anyone interested in the issue of criminalisation. It has provided me with a great deal of insight and food-for-thought as I write my book (an international overview of the issues) for NAM.

As the Honourable Michael Kirby writes in the preface

“NAPWA has collected knowledgeable and informed commentators who have a great awareness of the epidemic in Australia. Without exception, the chapters are thoughtful, balanced and informative. I hope that they will be read in Australia. Indeed, I hope that they will be available overseas to bring enlightenment that is the first step in an effective response to the epidemic.”

You can see video of MP Kay Hull speaking at the launch, held last month in Canberra, here.

The monograph is already working its magic as an advocacy tool. Last week, the Sydney Star Observer reports that HIV organisations in Victoria – where more than half of all Australian prosecutions have taken place – are leading the call to clarify exactly when the public health department will involve the police to deal with people who are not disclosing their HIV status and having unprotected sex.

Contents: click on image to enlarge

One of the chapters in the monograph examines such discrepancies in new state and national guidance on the management of people living with HIV who engage in risky sexual behaviour. The National Guidelines for the Management of People with HIV Who Place Others at Risk were produced in 2008 following the fallout from the Michael Neal and Stuart
McDonald cases. The guidelines recommend that public health authorities refer people who persistently ignore warnings to disclose and/or practise safer sex to the police as a last resort, but aren’t very clear on how this happens in practice.

Victorian AIDS Council executive director Mike Kennedy said although there were guidelines, a recent meeting of AIDS Council heads showed other states were similarly unclear about exactly what circumstances trigger a referral to police. “I’m not aware of any Australian state that has any clear guideline to say how this will happen, so that’s the missing bit from the reviews that were done around the country,” Kennedy said. “Our view is that [protocols] ought to be governed by a set of agreed procedures, not just rely on goodwill and a set of relationships between people in the Health Department and people in the police service because those people change.”

The NAPWA monograph also includes an enlightening chapter on the impact of prosecutions on people living with HIV, concern echoed in this comment in the SSO article from People Living With HIV/AIDS Victoria president Paul Kidd.

[Kidd] said the uncertainty of where criminal charges would be pursued was creating concern among some HIV positive people. “They’re fearful that in the normal course of their sexual lives they could put themselves in a situation where they inadvertently attract the attention of the police,” Kidd said. “We’re not talking about people who are deliberately spreading HIV or behaving in a negligent fashion. We’re talking about ordinary gay men and other people who are HIV positive who live in an environment where unprotected sex is a part of [their] lives.

I’m also reproducing an editorial by Robert Mitchell, NAPWA’s president, below, to give you an idea how NAPWA hopes this monograph will lead to a change in the way Australia deals with criminal prosecutions.

HIV affects us all and, positive or negative, gay or straight, we all have a responsibility to do what we can do prevent HIV transmission. People living with HIV have long accepted the critical role they play in preventing HIV infections, as part of a model of shared responsibility. But the recent increases in criminal prosecutions of HIV exposure and transmission in Australia have caused considerable concern and led some to ask: is that model of shared responsibility breaking down?

In response, last year NAPWA commissioned a collection of papers to examine these issues. We wanted to show how these cases have been prosecuted quite inconsistently across the country, and how they have been represented in the public domain by media coverage. We are launching the resulting monograph, The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality, this week.

A number of authors with different viewpoints have contributed to the monograph, including academics, legal experts and voices from within the HIV-positive and HIV-affected communities. The end result is a collection of papers that provide rigorous analysis of the current environment in Australia, and other parts of the world, with regards to prosecution of HIV transmission.

This set of materials and commentaries will be the basis for further work on these issues by NAPWA and its member organisations. Our intention is to start a dialogue across the HIV sector and with the broader public health and legal sectors, to examine the issues raised and the impact of criminal prosecutions on the HIV-positive community in Australia today.

While few would argue that an HIV-positive person who deliberately and maliciously sets out to infect another person with HIV has committed an act of violence that should be subject to criminal sanction, very few of the prosecutions in Australia have been in this category. Almost all have been for the ‘knowing and reckless’ category of HIV transmission, where the accused had no intention of transmitting HIV.

The use of criminal law against a person on the basis of HIV status in these circumstances is considered by many to be discriminatory, as it treats the HIV-positive partner as perpetrator and the HIV-negative partner as victim. This shifts the burden of prevention onto people with HIV, and undermines established principles of shared responsibility and safe, consenting, sexual practice.

The blame and persecution directed towards HIV positive people is unacceptable and NAPWA is calling for a review of criminal laws to redress this imbalance. Laws requiring mandatory disclosure by positive people, and laws that treat HIV as inherently more serious than other infections with similar medical impacts, are areas we think need fixing. We need a nationally consistent legal framework that supports public health policy and population health outcomes, and protects the human rights of people with HIV.

NAPWA hopes this work will spark interest and support from across the community to work towards resolving these differences and contradictions. We are working towards a nationally consistent, fair and just legal framework that reinforces rather than degrades the model of shared responsibility and treats HIV as a health issue first and a legal issue only as a last resort.