Tennessee’s two primary HIV criminalization laws—aggravated prostitution and criminal exposure—are considered a “violent sexual offense” and require a person convicted to register as a sex offender for life. Using data obtained from Tennessee’s sex offender registry, this study examines the enforcement of HIV criminalization laws in Tennessee from 1991 to 2022.
To read the full report, please go to: https://williamsinstitute.law.ucla.edu/publications/hiv-criminalization-tennessee/
Today we are delighted to share with the world a new short film, Mwayi’s Story, produced by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE.
Mwayi’s Story is a story about courage, and about women standing up for their rights. The film is based on the story of a woman in Malawi who was prosecuted for briefly breastfeeding another woman’s baby and the subsequent successful advocacy in Malawi to prevent an HIV criminalisation statute being passed.
Ultimately, Mwayi’s Story is about HIV justice!
We wanted to produce a film that was authentic to the lived experience of an HIV criminalisation survivor but without making her go through the trauma of having to relive the experience by telling her story again.
HJN’s video, visuals and webshows consultant, Nicholas Feustel, who produced and directed the film, said: “Since this story is primarily about mothers and children, we decided to produce the film in the style of an illustrated children’s storybook. We searched for a female illustrator working in sub-Saharan Africa and found the wonderful Phathu Nembilwi of Phathu Designs.
“For our narrator, we found Upile Chisala, a storyteller from Malawi known for her short and powerful poems.”
The script by HJN’s Senior Policy Analyst, Alison Symington, was written in consultation with our Supervisory Board member, Sarai Chisala-Tempelhoff, a Malawian human rights lawyer and legal researcher with over 15 years of experience in women’s access to justice.
We also worked with our HIV JUSTICE WORLDWIDE partners, Southern Africa Litigation Centre (SALC) and AIDS and Rights Alliance for Southern Africa (ARASA), to ensure that the film was relevant to their ongoing advocacy in the region. In fact, Mwayi’s Story had its world premiere last week on Zambia’s Diamond TV, in anticipation of a verdict in a similar breastfeeding case.
The film will be shown in a number of forums over the next few months, including at AIDS 2022. It will soon be subtitled in French, Russian and Spanish, and we are also looking for partners to translate additional subtitles if they think the film can be useful in their own advocacy. If you’re interested you can get in touch with us at breastfeeding@hivjustice.net. We will send you the English subtitle file for translation. After you return the file to us, we will upload it to YouTube.
Mwayi’s Story is part of our ongoing work to end the criminalisation of women living with HIV for breastfeeding and comfort nursing, including our Breastfeeding Defence Toolkit. It is our goal to collaborate with advocates, researchers, service providers, organisations and community members around the world to raise awareness and prevent further unjust prosecutions against women living with HIV who breastfeed or comfort nurse. We are grateful to both the Elizabeth Taylor AIDS Foundation and the Robert Carr Fund for their financial support for this work, and this film.
A new report produced by the Eurasian Women’s Network on AIDS with the Global Network of People Living with HIV on behalf of HIV JUSTICE WORLDWIDE, illustrates how women living with HIV, who are disproportionally impacted by HIV criminalisation across the Eastern Europe and Central Asia (EECA) region, have also been the leaders in research, advocacy and activism against it. The report is now available in English after being originally published in Russian in January.
The report illustrates how HIV criminalisation and gender inequality are intimately and inextricably linked. By highlighting prosecution data from Belarus, Kazakhstan, Russia and Ukraine disaggregated by sex, the report shows how the burden of HIV criminalisation is falling upon women.
The report also includes some heart-breaking personal stories including that of a woman in Russia who was prosecuted for breastfeeding her baby, as well as several women in Russia blackmailed by former partners who threatened to report them for alleged HIV exposure as a way to control, coerce, or abuse them.
The evidence provided in the report clearly demonstrates that HIV criminalisation not only fails to protect women from HIV, but worsens their status in society, making them even more susceptible to violence and structural inequalities due to the way their HIV-positive status is framed by the criminal law.
The report goes on to explore how women living with HIV in the region are vulnerable to a range of economic consequences including loss of property, as well as ostracism and discrimination in their communities, including being separated from their children, because:
The report also shows a direct connection between HIV criminalisation and other forms of criminalisation – notably the use and possession of drugs, and of sex work – that exacerbate the burden of discrimination, the violation of rights, and violence experienced by women living with HIV in the region.
Despite the difficult picture painted, the report provides hope, however.
It is the mobilisation of the women’s community and the meaningful participation of HIV-positive women and their allies in advocacy for law reform, rights protections – and in the preparation of alternative reports to UN Committees such as the Committee on the Elimination of Discrimination against Women (CEDAW) – that are making a real difference in the fight against HIV criminalisation in the region.
Disability Rights Education & Defense Fund (DREDF) opposes the criminalization of people based on their HIV-positive status. In addition to being harmful to public health, laws and prosecution targeting HIV-positive people constitute discrimination on the basis of disability. The Americans with Disabilities Act (ADA)[1] prohibits disability discrimination by state and local governments.[2] State laws and prosecutions that criminalize people living with HIV without a basis in current objective medical and scientific knowledge violate the ADA and other antidiscrimination mandates. We urge lawmakers across the country to modernize their HIV laws and policies, and to discard outdated and harmful punitive approaches.
Background
During the outset of the HIV epidemic, many states enacted laws that criminalized or enhanced the criminal penalties for certain acts by people living with HIV that were thought to create the risk of exposure to HIV.[3] These laws were passed at a time when fear and misinformation about HIV was widespread, particularly about how HIV is transmitted. Today, with the benefit of more than 30 years of research and considerable advances in medical treatments, the scientific and medical communities have learned much more about how HIV is transmitted and how to prevent transmission. We now know that HIV is not spread through saliva, tears, or sweat.[4] We also know that the use of condoms, PrEP (pre-exposure prophylaxis), and antiviral medication, by themselves or in combination, can dramatically reduce the risk of HIV transmission, in some cases to zero.[5] HIV has also become a medical condition that is managed with medications and other treatments, with people with HIV now having a life expectancy that matches that of the general public.[6] Yet most HIV criminal laws do not reflect current scientific and medical knowledge.[7] In addition, HIV criminalization laws undermine public health by discouraging people from seeking testing and treatment options, such as antiviral medication, that can protect their health and reduce transmission.[8]
Outdated HIV criminalization laws constitute disability discrimination because they treat people living with HIV more harshly without an objective scientific basis. Several states, such as California, Missouri, and North Carolina, have taken steps in recent years to modernize their state HIV laws.[9] Unfortunately, many state laws have still not been updated to reflect current scientific and medical knowledge. Laws in several states criminalize acts that cannot transmit HIV, such as spitting,[10] or that pose no material risk of transmission.[11] These laws do not account for actions that reduce risk, such as condom usage or PrEP or whether transmission has actually occurred.[12]
People with disabilities, including people living with HIV, deserve to live lives free from discrimination and irrational prejudice. DREDF opposes outdated laws that single out people for criminal penalties or enhanced criminal penalties based on their HIV-positive status. These laws violate the ADA and undermine public health. They should be repealed.
[1] 42 U.S.C. § 12131 et seq.
[2] 42 U.S.C. § 12132.
[3] See J. Kelly Strader, Criminalization as a Policy Response to a Public Health Crisis, 27 J. Marshall L. Rev. 435 (1994); Wendy E. Permet, AIDS and Quarantine: The Revival of an Archaic Doctrine, 14 Hofstra L. Rev. 53 (1985-1986).
[4] Centers for Disease Control and Prevention, Ways HIV is Not Transmitted, (April 21, 2021) available at https://www.cdc.gov/hiv/basics/hiv-transmission/not-transmitted.html (“[HIV] is not transmitted […] Through saliva, tears, or sweat”).
[5] Robert W. Eisinger, Carl W. Dieffenbach, Anthony S. Fauci, HIV Viral Load and Transmissibility of HIV Infection: Undetectable Equals Untransmittable, Journal of the American Medical Association (2019), available at https://jamanetwork.com/journals/jama/article-abstract/2720997; National Institute of Allergy and Infectious Disease, The Science Is Clear—With HIV, Undetectable Equals Untransmittable: NIH Officials Discuss Scientific Evidence and Principles Underlying the U=U Concept, (Jan. 10 2019), available at https://www.niaid.nih.gov/news-events/science-clear-hiv-undetectable-equals-untransmittable (“In recent years, an overwhelming body of clinical evidence has firmly established the HIV Undetectable = Untransmittable (U=U) concept as scientifically sound, say officials from the National Institutes of Health. U=U means that people living with HIV who achieve and maintain an undetectable viral load—the amount of HIV in the blood—by taking and adhering to antiretroviral therapy (ART) as prescribed cannot sexually transmit the virus to others.”); Alison J. Rodger, Valentina Cambiano, Tina Bruun, et al., Sexual Activity Without Condoms and Risk of HIV Transmission in Serodifferent Couples When the HIV-Positive Partner Is Using Suppressive Antiretroviral Therapy, JAMA. 2016;316(2):171-181. doi:10.1001/jama.2016.5148 (2016), available at https://jamanetwork.com/journals/jama/fullarticle/2533066; Roger Chou, Christopher Evans, Adam Hoverman, et al., Preexposure Prophylaxis for the Prevention of HIV Infection: Evidence Report and Systematic Review for the US Preventive Services Task Force, JAMA (2019), available at https://jamanetwork.com/journals/jama/fullarticle/2735508; Centers for Disease Control and Prevention, PrEP Effectiveness (May 13, 2021), available at https://www.cdc.gov/hiv/basics/prep/prep-effectiveness.html (“PrEP reduces the risk of getting HIV from sex by about 99% when taken as prescribed.”).
[6] Hasina Samji, et al., Closing the Gap: Increases in Life Expectancy among Treated HIV-Positive Individuals in the United States and Canada (December 18, 2013), PLOS ONE, available at https://doi.org/10.1371/journal.pone.0081355.
[7] Division of HIV Prevention, National Center for HIV, Viral Hepatitis, STD, and TB Prevention – Centers for Disease Control and Prevention, HIV Criminalization and Ending the HIV Epidemic in the U.S., available at https://www.cdc.gov/hiv/policies/law/criminalization-ehe.html (“After more than 30 years of HIV research and significant biomedical advancements to treat and prevent HIV, most HIV criminalization laws do not reflect current scientific and medical evidence.”).
[8] Division of HIV Prevention, National Center for HIV, Viral Hepatitis, STD, and TB Prevention – Centers for Disease Control and Prevention, HIV Criminalization and Ending the HIV Epidemic in the U.S., available at https://www.cdc.gov/hiv/policies/law/criminalization-ehe.html (“[HIV criminalization] laws have not increased disclosure and may discourage HIV testing, increase stigma against people with HIV, and exacerbate disparities.”); J. Stan Lehman et al., Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, AIDS Behav. 2014; 18(6): 997–1006., available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4019819/.
[9] Division of HIV Prevention, National Center for HIV, Viral Hepatitis, STD, and TB Prevention – Centers for Disease Control and Prevention, HIV and STD Criminalization Laws, available at https://www.cdc.gov/hiv/policies/law/states/exposure.html.
[10] See, e.g., MISS. CODE ANN. § 97-27-14(2); Ind. Code §§ 35-42-2-1, 35-45-16-2(c), 35-50-3-3; OHIO REV. CODE ANN. §§ 2921.38, 2929.14.; 18 PA. CONS. STAT. ANN. § 2703.
[11] See ALA. CODE § 22-11A-21; ARK. CODE ANN. § 5-14-123; Centers for Disease Control and Prevention, Ways HIV Can Be Transmitted, (April 21, 2021) available at https://www.cdc.gov/hiv/basics/hiv-transmission/ways-people-get-hiv.html (“[t]here is little to no risk of getting HIV” from oral sex); Julie Fox, Peter J. White, Jonathan Weber, et al., Quantifying Sexual Exposure to HIV Within an HIV-Serodiscordant Relationship: Development of an Algorithm, AIDS 2011, 25:1065–1082 at 1077 (2011).
[12] J. Stan Lehman et al., Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, AIDS Behav. 2014; 18(6): 997–1006., available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4019819/.
The Eurasian Women’s AIDS Network (EWNA) has produced the compendium “Women’s Leadership on HIV Decriminalisation: Experiences of the EECA Region“. The compendium compiles the results of research conducted by the women’s community, examples of documented personal stories and court cases.
All of the collected materials demonstrate how criminalisation of HIV is a global problem and how it is linked to gender-based violence. Experts believe that criminalising laws do not protect women from acquiring HIV but only make them worse off in society.
Such laws make them more vulnerable to HIV-related violence and structural inequalities because
Breastfeeding can be used as a means of direct influence; women living with HIV in discordant couples do not escape harassment due to their status, despite the indeterminate burden and voluntary consent of the partner in the relationship, confidential medical information is often shared with law enforcement authorities.
HIV criminalisation in the EECA region is directly linked to other types of criminalisation (drug use and sex work), the combination of which exacerbates the problem of rights violations and violence against women living with HIV.
The compendium addresses the following issues and themes:
What harms does the criminalisation of HIV cause?
Why are women more vulnerable?
Findings from studies and comparative analysis of court sentences.
Documented cases of blackmail of women living with HIV
The role of the media in the criminalisation of women living with HIV (example of Tajikistan).
HIV and labour law (example from Uzbekistan).
Elimination of vertical transmission and decriminalisation of HIV.
The compendium is available in Russian. It can be downloaded here.
Translated with www.DeepL.com/Translator (free version)
ЖСС выпустила сборник «Женское лидерство в вопросах декриминализации ВИЧ»
Евразийская Женская сеть по СПИДу (ЕЖСС) подготовила сборник «Женское лидерство в вопросах декриминализации ВИЧ: опыт региона ВЕЦА». В сборнике собраны результаты исследований, проводимых женским сообществом, примеры задокументированных личных историй и судебных разбирательств.
Все собранные материалы демонстрируют, насколько глобальной проблемой является криминализация ВИЧ и как она связана с гендерным насилием. Экспертки считают, что криминализирующие законы не защищают от заражения ВИЧ, а только ухудшают положение женщин в обществе.
Подобные законы делают их более уязвимыми перед насилием и структурным неравенством в связи с ВИЧ, поскольку:
кормление грудью может использоваться как средство прямого влияния;
женщины с ВИЧ, живущие в дискордантных парах, не избавляются от преследования в связи со статусом, несмотря на неопределяемую нагрузку и добровольное согласие партнера на отношения;
конфиденциальная медицинская информация часто передается в правоохранительные органы.
Криминализация ВИЧ в регионе ВЕЦА напрямую связана с другими видами криминализации (наркозависимость и секс-работа), совокупность которых усугубляет проблему, связанную с нарушением прав и насилием в отношении женщин, живущих с ВИЧ.
В сборнике затронуты следующие вопросы и темы:
Какой вред приносит криминализация ВИЧ?
Почему женщины оказываются в более уязвимом положении?
Результаты исследований и сравнительный анализ судебных приговоров.
Задокументированные случаи шантажа женщин с ВИЧ.
Роль СМИ в криминализации женщин, живущих с ВИЧ (пример Таджикистана).
ВИЧ и трудовое право (пример Узбекистана).
Устранение вертикальной передачи и декриминализация ВИЧ.
Сборник оформлен на русском языке. Скачать его можно здесь.
This paper reviews recent studies examining the application of HIV-specific criminal laws in North America (particularly the United States and Canada). In the wake of the development of new biomedical prevention strategies, many states in the United States (US) have recently begun to reform or repeal their HIV-specific laws. These findings can help inform efforts to ‘modernize’ HIV laws (or, to revise in ways that reflect recent scientific advances in HIV treatment and prevention).
This review can be downloaded here.
Criminal prosecutions related to presumed HIV exposure via breastfeeding are all-too-often driven by stigma, misinformation, and the desire to protect a child from exaggerated risk. People living with HIV require a vigorous defence based on principles of justice and human rights, good public policy, and accurate science.
Which is why this week we have launched the Breastfeeding Defence Toolkit as a new section of our HIV Justice Tookit.
The Breastfeeding Defence Toolkit provides materials to support lawyers and advocates supporting people living with HIV who face criminal charges or other punitive measures for breastfeeding, chestfeeding, or comfort nursing.
Although the Breastfeeding Defence Toolkit is currently only available in English, we are working on French, Russian and Spanish versions. In addition, new resources will be added to the Toolkit as they become available.
The Breastfeeding Defence Toolkit was launched at Beyond Blame: Challenging Criminalisation for HIV JUSTICE WORLDWIDE on Tuesday 30 November 2021. Watch the 10 minute segment below.
Background
In 1986, it was discovered that HIV could be transmitted from a woman to a child through breastfeeding. Since this time, women living with HIV have borne the weight of the responsibility of preventing HIV transmission to their offspring. This responsibility has been used to justify surveillance, judgement, and limitations on autonomy and decision-making for women living with HIV.
Some women living with HIV have faced criminal prosecution for exposing fetuses and/or infants to a risk of HIV infection, especially through breastfeeding. These numbers may be small compared to the number who have faced criminal charges with respect to HIV non-disclosure, exposure and transmission in sexual contexts, but cases are increasing.
The HIV Justice Network is aware of at least 13 such cases in the past decade, with a growing number of criminal prosecutions taking place across the African continent as well as in Russia since 2018. We are also aware of several cases that took place in North America and Europe between 2005 – 2012.
These cases include charges laid against mothers, community members and domestic employees. Various criminal charges have been used in these cases, including failure to provide the necessaries of life, grievous bodily harm, unlawfully doing an act likely to spread a dangerous disease, and deliberately infecting another with HIV.
In addition to these criminal cases, many more women have experienced punitive responses from service providers, public health, and child welfare authorities.
Criminal prosecutions and other punitive responses to breastfeeding by women living with HIV pose significant harms to both the accused and the child. HIV criminalisation threatens the health and well-being of people living with HIV and jeopardises the goals of ending HIV discrimination and, ultimately, the epidemic. Not only do punitive laws targeting people living with HIV lack a scientific evidence base they also serve as barriers to HIV prevention, treatment, and care, and perpetuate stigma.
Infant feeding choices should not be a criminal issue. Parents should be provided with full information to make the best choices for their families and infant feeding should be managed through clinical support. Science supports that the best outcomes for a mother and a child result from proper medical care, access to treatment and openness. Criminalising maternal and child health issues generally risks worse outcomes for the infant.
A new briefing paper published today by Positive Women’s Network-USA on behalf of the HIV JUSTICE WORLDWIDE coalition aims to support people living with HIV, activists, legal experts, and human rights campaigners in understanding the complexities and consequences of molecular HIV surveillance (MHS).
“Molecular HIV Surveillance: A global review of human rights implications” provides a detailed explanation of what MHS is and how it is used across the globe, including how the technology works, where it is being conducted, and by whom. The paper describes growing human rights concerns relating to the use of this technology and goes on to list a number of recommendations for the use of MHS which were gathered from an international literature review and from members of the Expert Advisory Group.*
Molecular HIV surveillance (MHS) is an umbrella term that describes a wide range of practices focused on the monitoring of HIV variants and the differences and similarities between them for scientific research, public health surveillance, and intervention.
To conduct MHS, scientists rely on the results of HIV genetic sequencing tests taken from people living with HIV – these tests are often done before prescribing HIV medication to determine if the individual has a strain of HIV that is resistant to certain treatments. Interest in, and use of, MHS for reasons other than tailoring treatment regimens is increasing globally, however. Of particular concern, in some regions, MHS is being conducted and HIV data is being shared in ways that put the rights and safety of people living with HIV in jeopardy.
“HIV is highly stigmatised and communities that are most vulnerable to acquiring HIV are already highly policed and at risk for violence” said Naina Khanna, co-executive director of Positive Women’s Network-USA, a US-based membership organisation led by women and people of transgender experience living with HIV. “In more than 30 states in the US alone, and over 100 countries around the world, people with HIV can be criminalised on the basis of their health condition. Taking this kind of data from people without their consent or knowledge and storing or sharing it without adequate protections is extremely risky and could come at the cost of someone’s personal safety, their livelihood, and in the case of HIV criminalisation, their freedom.”
The paper highlights how HIV experts and advocates have raised a range of human rights concerns about this technology. These include:
Edwin J Bernard, Executive Director of the HIV Justice Network and global co-ordinator of the HIV JUSTICE WORLDWIDE coalition added: “MHS treats people living with HIV as ‘clusters’ and targets of public health interventions, rather than the beneficiaries of public health. When you combine MHS with HIV criminalisation it’s a perfect storm. That’s why I commissioned PWN-USA to produce this briefing paper as a first step to understand the problems and to suggest a range of possible solutions. With increased knowledge on the practices of MHS, individuals and organisations can be better equipped to advocate for ending research and surveillance practices that have the potential to harm the rights, autonomy, and well-being of people living with HIV.”
The paper provides wide-ranging recommendations for change aimed at various stakeholders, highlighting five key areas of action:
The paper is now available in four languages:
Watch the launch video below:
Follow the online conversation on Twitter by using the hashtags #EndMHS #DataPrivacy #DataProtection #HIVJustice and by following @HIVJusticeNet @uspwn.
We gratefully acknowledge the financial contribution of the Robert Carr Fund to this report.
*MHS Expert Advisory Group
A new report published by the Global Equality Caucus examines what elected officials can do to ensure LGBT+ people receive equitable access to HIV healthcare.
The report titled Breaking barriers in HIV: Action for legislators to address LGBT+ inequities, includes ten recommendations for legislators and others to take forward, including repealing or modernising outdated HIV criminalisation laws, and doing more to safeguard health data privacy.
The report notes that HIV criminalisation laws are “out of step with modern scientific understanding and perpetuate outdated HIV stigmas.” Removing such laws would help to tackle prejudice and refocus HIV as a public health crisis.
Also relevant to our ongoing work on molecular HIV surveillance, the report further recommends that where data is collected, anonymity should always be assured, and “this applies to HIV testing, immigration status, or whatever other circumstances that may place LGBT+ people in danger should their health data be shared with other government authorities.”
Parliamentarians have a responsibility to ensure government departments respect the privacy of citizens and that health data is not being shared with agencies that could present additional barriers to the lives of LGBT+ people, such as immigration authorities or justice departments.
The Health Not Prisons Dispatch is a monthly bulletin highlighting recent developments relevant to criminalisation and policing of people living with HIV in the United States, along with upcoming events, relevant resources, and opportunities to get involved.
The June edition is available here: https://www.pwn-usa.org/issues/the-health-not-prisons-collective/health-not-prisons-dispatch/june-2021-health-not-prisons-dispatch
For more information about the coalition email Tyler Barbarin at tyler@pwn-usa.org.
You can select your preferred language from the 'Select Language' menu at the top of the page.