France: Grindr proposed HIV filter raises fear it could be used as a new tool to target and criminalize HIV

English version (Défilez plus bas pour la version française)

Filtering for HIV status on Grindr? A proposal that is going down badly.

A questionnaire sent by the dating app for gay men to some of its users raises fear of stigmatising HIV-positive men.

Being able to search men’s profiles based on their HIV status is the idea submitted by Grindr, the most famous gay dating geo applications in a questionnaire sent out recently to some of its 10.5 million users.

Vincent received the questionnaire when connecting to the App and completed it, although he found some of the questions “very troubling.” They all revolve around HIV: information on the current HIV status of users, their sexual practices, proposal to send reminders to encourage regular screening … But among them one question in particular creates controversy:

“How would you react if Grindr allowed you to filter the men you see based on their HIV status? ”

“Not only does it send a very bad signal about the perception of HIV, but it does not create a sense of real security, it is a false protection,” notes Mathieu Brancourt, editor of AIDES.

“Grindr would not be able to verify the information”

He pointed out this questionnaire on Twitter after denunciation by several US users (including bloggers Josh Robbins and David Myles). He added: “It would be based on declarative statement, Grindr could not verify it. ”

What credibility could we give it in reality, knowing that only one American out of 10 knows that he is HIV-positive and that “the bulk of the contamination occurs in people who do not know their status,”highlights Rémi, the Leader of the commission for serophobia LGBTphobia-Act-Up Paris?

Mathieu Brancourt questions the purpose and the risks involved, particularly with regard to the criminalisation of HIV transmission, “This information could for example be exploited legally in the context of situations in which a man claiming to be seronegative transmit HIV to someone else. ”

The app designer themselves assume responsibility for the “uncomfortable questions”

Questioned by Rue89, a representative of the company ensures that it seeks only to “promote education”:

“We observed a significant increase in user profiles openly discussing their HIV status and the dates of their tests.

Since it is not part of our profile options to date, we are investigating with users to determine both if they wish to share this information, and how to avoid stigmatisation and provide appropriate support. Sometimes this involves asking awkward questions. ”

We have however received no confirmation as to the actual implementation of the option and the launch date if applicable.

“It’s stigmatizing”

Among the users we interviewed, Grindr’s survey is going down badly. “With regard to the filter, I am vehemently against it. It’s conter-productive and discriminatory. One population is de facto dismissed, “says Hugo, 20 years old.

“The idea of being filtered through that test bothers me a lot. I’m already not very comfortable with the filters on these applications in general, here it goes much too far for me, “added Donald, 25 years old.

Julien (his name has been changed on request), 18 and HIV negative, “it is stigmatizing. Just because the app caters to gay does not mean they should indicate whether they have AIDS or not. ” However he admits: “If the function existed, I would tend to filter out the positive users.”

“People ask me if I’m clean ‘

Fred, 48, HIV-positive since 1986 and non-infectious, does not try to hide his HIV status:

“I say when I’m asked. It regularly happens that the boys cut the conversation short. They are idiots who are totally ignorant about HIV. ”

Beyond the problematic issue of filtering by HIV status, the Grindr survey has the merit of highlighting how HIV is still a taboo and a misunderstood subject.

“I never ask for the HIV status of the men I meet,” says Vincent, HIV-negative, 42, “but many people ask me if “I am clean “, which in reality means nothing.

I think this information should be shared especially if you have borderline practices, not always using condoms and such. But by having safer sex consistently, the issue is not important for me. ”

Fred only sleeps with positive men

Although he finds the idea of a filter totally unacceptable, Fred acknowledges that he prefers to sleep with HIV-positive men like him.

Primarily because it does not want to deal with the fear and thoughts of those who think he is infectious even though his viral load is undetectable, but also because he knows that he can have sex without a condom safely:

“People with HIV on treatment have blood tests every three months. It’s safer for my health and it makes me more comfortable with my sexuality. ”

In terms of prevention, dating applications – regularly accused of playing a part in the increase of STDs and STIs -have an important role to play among a population particularly affected by the epidemic. “Especially as practices without a condom are spreading,” notes Vincent. “Not a day goes by without someone proposing it to me. ”

Barebacking

“Barebacking”, the practice of having unprotected sex voluntarily, is commonly suggested on apps. In 2014, men who have sex with men represented 42% of cases of HIV diagnoses in France.

“Today, an HIV-positive person who is on treatment is not infectious, this is the point that should be insisted upon with users,” raises Rémi of Act-Up Paris.

He educates users on dating apps sites via profiles created for the association, like Etienne Fouquay, in charge of New health strategies and digital activism for AIDES. For him, “this is obviously the place to be.”

He explains : “We offer discussions or individual interviews to users. With the appreciation of geolocation (on Grindr for example), we can promote screening activities we lead with mobile vans in the area. ”

On Hornet, the date of the last screening

AIDES volunteers however work more or less underground and do not benefit from the official support of apps.

“It even happens that users report us and Grindr regularly deletes profiles. Each time, it is like an obstacle course. ”

AIDES however was able to negotiate the opening of popups – for which they pay – on the app, including prevention information.

But all the brands do not have the same policy, added Etienne Fouquay “Hornet and Scruff have a much more proactive approach and want us to work together. ”

On Hornet, several users told us, it is for example possible to display the date of the last screening. This is what Donald does: “I mention it to encourage people who visit my profile to do it regularly. It is unfortunately not possible to indicate the last testing date without disclosing one’s HIV status, so I check that I am HIV negative. ”

Testing kits

“It seems to me that indicating one’s status publicly on these apps could be a good thing. This may eventually allow to demystify the thing while being aware of the duty to protect oneself. However, it can also act as a deterrent. So giving it publicly yes, provided that it is a choice, “says Hugo meanwhile.

Ultimately, the ideal for AIDES would be to be able to have official profiles for the organisation on apps. “We will also send home testing kits to people via apps,” explained Stephen Fouquay.

The latter option has already been set up with Grindr in Los Angeles. Through the application, 56 African-American and Hispanic men, the populations most affected by HIV, have recently been able to receive screening kits. Among them, 69% had not been tested in the past six months. So rather than a filter by HIV status, when will this type of initiative arrive in France?

Filtrer les séropositifs sur Grindr ? La proposition qui passe mal

Un questionnaire envoyé par l’appli de rencontres gay à certains de ses utilisateurs laisse craindre une stigmatisation des hommes séropositifs.

Pouvoir rechercher des profils d’hommes en fonction de leur statut sérologique lié au VIH. C’est l’idée soumise par Grindr, la plus connue des applications de rencontres gays géolocalisées, dans un questionnaire envoyé ces derniers jours à certains de ses 10,5 millions d’utilisateurs.

Vincent l’a reçu en se connectant à l’appli et l’a rempli, bien qu’il ait trouvé certaines questions « très gênantes ». Celles-ci tournent toutes autour du VIH : renseignements sur l’actuel statut sérologique des usagers, sur leurs pratiques sexuelles, proposition d’envoyer des rappels pour inciter à des dépistages réguliers… Mais parmi elles, une en particulier crée la polémique :

« Comment réagirais-tu si Grindr t’autorisais à filtrer les hommes que tu vois en fonction de leur statut sérologique ? »

« Non seulement ça envoie un très mauvais signal concernant la perception des séropositifs, mais ça n’instaure pas un sentiment de sécurité réel, c’est une fausse protection », fait remarquer Mathieu Brancourt, rédacteur pour l’association de lutte contre le Sida Aides.

« Grindr ne pourrait pas le vérifier »

Il a signalé ce questionnaire sur Twitter après sa dénonciation par plusieurs utilisateurs américains (dont les blogueurs Josh Robbins et David Myles). Il ajoute : « Ce ne serait basé que sur du déclaratif, Grindr ne pourrait pas le vérifier. »

Quel crédit pourrait-on en effet y accorder, sachant par ailleurs qu’un Américain sur dix ignore qu’il est séropositif et que « le gros des contaminations se fait chez des personnes qui ne connaissent pas leur statut sérologique », comme le souligne Rémi, responsable de la commission LGBTphobie-sérophobie d’Act-Up Paris ?

Mathieu Brancourt s’interroge sur le but recherché et les risques encourus, notamment au regard de la pénalisation de la transmission du VIH : « Ces informations pourraient par exemple être exploitées juridiquement dans le cadre de situations où un homme se déclarant séronégatif transmettrait le VIH à quelqu’un d’autre. »

L’appli assume ses « questions gênantes »

Interrogée par Rue89, une représentante de l’entreprise assure que cette dernière ne cherche qu’à « favoriser l’éducation » :

« Nous avons observé une augmentation significative de profils d’utilisateurs discutant ouvertement de leur statut VIH et des dates de leurs tests.

Etant donné que cela ne fait pas partie de nos options de profils à ce jour, nous enquêtons auprès des usagers pour déterminer à la fois s’ils désirent partager cette information, et les moyens d’éviter la stigmatisation et de fournir un support approprié. Parfois, cela implique de poser des questions gênantes. »

Nous n’avons en revanche pas obtenu de confirmation quant à la mise en place effective de l’option et à la date de lancement le cas échéant.

« C’est stigmatisant »

Chez les utilisateurs que nous avons interrogés, le questionnaire de Grindr passe mal. « S’agissant du filtre, je suis farouchement contre. C’est contre-productif et discriminant. On écarte de facto une population », commente Hugo, 20 ans.

« L’idée d’être filtré sur ce critère me dérange beaucoup. Je ne suis déjà pas très à l’aise avec les filtres sur ces applications en général, ici ça va beaucoup trop loin pour moi », ajoute quant à lui Donald, 25 ans.

Pour Julien (son prénom a été changé à sa demande), 18 ans et séronégatif, « c’est stigmatisant. Ce n’est pas parce que l’appli s’adresse aux gays qu’ils doivent indiquer s’ils ont le Sida ou pas ». Il reconnaît néanmoins : « Si la fonction existait, j’aurais tendance à filtrer pour enlever les utilisateurs positifs ».

« On me demande si je suis clean »

Fred, 48 ans, séropositif depuis 1986 et non-contaminant, ne cherche pas à cacher son statut sérologique :

« Je le dis quand on me le demande. Il arrive régulièrement que des garçons coupent court à la conversation. Ce sont des crétins qui ont une méconnaissance totale du VIH. »

Car au-delà de la question problématique d’un filtre par statut sérologique, l’enquête de Grindr a le mérite de mettre en lumière à quel point le VIH est encore un sujet tabou et méconnu.

« Je ne pose jamais la question du statut sérologique aux hommes que je rencontre », confie Vincent, séronégatif de 42 ans, « mais nombreux sont ceux qui me demandent si je suis “clean”, ce qui, au fond, ne veut rien dire.

J’estime que c’est une information à partager surtout si on a des pratiques borderline, avec une rupture de capote ou autre. Mais en ayant des rapports systématiquement protégés, cette question n’a pas d’importance pour moi. »

Fred ne couche qu’avec des séropositifs

Bien qu’il trouve l’évocation d’un filtre totalement inacceptable, Fred reconnaît qu’il préfère ne coucher qu’avec des hommes séropositifs, comme lui.

Avant tout parce qu’il ne veut pas s’infliger les peurs et réflexions de ceux qui le pensent contaminant alors que sa charge virale est indétectable, mais également parce qu’il sait qu’il pourra avoir des rapports sans préservatif en toute sécurité :

« Les séropositifs sous traitement ont des prises de sang tous les trois mois. C’est plus sûr pour ma santé et ça me met plus à l’aise avec ma sexualité. »

En matière de prévention, les applications de rencontre – régulièrement accusées de participer à l’augmentation des MST et IST – ont justement un important rôle à jouer chez un public particulièrement touché par l’épidémie. « D’autant plus que les pratiques sans préservatif se généralisent », relève Vincent. « Il ne se passe pas une journée sans que l’on m’en propose. »

Barebacking

On parle notamment de « barebacking », cette pratique qui consiste à avoir des relations sexuelles volontairement non protégées, couramment suggérées sur les applis. En 2014, les hommes ayant des rapports sexuels avec des hommes représentaient 42% des cas de découvertes de séropositivité en France.

« Aujourd’hui, une personne séropositive qui est traitée n’est pas contaminante, c’est sur ça qu’il faudrait insister auprès des usagers », soulève Rémi d’Act-Up Paris.

Il sensibilise les usagers de sites et applis de rencontre via des profils créés pour l’association, tout comme Etienne Fouquay, chargé de mission Nouvelles stratégies de santé et actions numériques à Aides. Pour lui, « c’est évidemment là qu’il faut agir ». Il explique :

« Nous proposons des discussions ou des entretiens individuels aux utilisateurs. Avec la plus-value de la géolocalisation (sur Grindr par exemple), nous pouvons promouvoir des actions de dépistage que nous menons dans des camions aux alentours. »

Sur Hornet, la date du dernier dépistage

Les bénévoles de Aides interviennent néanmoins dans une certaine clandestinité et ne bénéficient pas de l’appui officiel des applications.

« Il arrive même que des usagers nous signalent et que Grindr supprime régulièrement nos profils. A chaque fois, c’est un parcours du combattant. »

Aides a toutefois pu négocier l’ouverture de fenêtres pop-up – payantes – sur l’application, comprenant des informations de prévention.

Mais toutes les marques n’ont pas la même politique, ajoute Etienne Fouquay : « Hornet et Scruff ont des démarches beaucoup plus volontaristes et veulent que l’on travaille ensemble. »

Sur Hornet, nous font remarquer plusieurs utilisateurs, il est par exemple possible d’afficher la date de son dernier dépistage. C’est ce que fait Donald :

« Je l’indique pour inciter les gens qui visitent mon profil à le faire régulièrement. Il n’est hélas pas possible d’indiquer la dernière date sans dévoiler son statut sérologique, donc je coche que je suis bien séronégatif. »

Kits de dépistage

« Il me semble que donner publiquement son statut sérologique sur ces applications peut être une bonne chose. Cela peut éventuellement permettre de désacraliser la chose tout en ayant conscience de l’obligation de se protéger. Pour autant, cela peut aussi agir comme un effet dissuasif. Donc le donner publiquement oui, à condition que cela soit un choix », tranche quant à lui Hugo.

À terme, l’idéal pour Aides serait de bénéficier de profils associatifs officiels sur les applications. « Nous allons également envoyer des kits de dépistage au domicile des personnes via les applications », explique Etienne Fouquay.

Cette dernière option a d’ores et déjà été mise en place avec Grindr à Los Angeles. Grâce à l’application, 56 hommes afro-américains et hispaniques, populations particulièrement touchées par le VIH, ont récemment pu recevoir des kits de dépistage. Parmi eux, 69% n’avaient pas été testés dans les six derniers mois. Alors, plus qu’un filtre par statut sérologique, à quand ce type d’initiative en France ?

Originally published on rue89

US: Second HIV is not a crime training academy creates an important intersectional shift in the US anti-HIV criminalisation movement

The second HIV Is Not a Crime Training Academy , which took place in May at the University of Alabama, Huntsville, brought together more than 300 advocates from 34 US states, as well delegations from Canada and Mexico.

Organised jointly by two of our HIV JUSTICE WORLDWIDE partners, the Sero Project and Positive Women’s Network–USA, the meeting was a unique opportunity for the people most affected by HIV criminalisation to take centre stage and have their voices be heard.

As Mark S King’s blog post highlighted in his blog and video produced the week following the meeting:

The intersections of race, gender, and sexuality were given as much weight as strategy sessions on working with legislators and lawyers, and the program repeatedly drove home the fact that criminalizing behaviors related to specific groups of people is as American as apple pie. Plenary speakers included advocates for women (including transgender women), current and former sex workers, immigration reform and drug legalization advocates, and, most powerfully, people who have been prosecuted under HIV criminalization statutes.

The theme of intersectionality and what it means for HIV criminalisation advocacy was further explored in this thoughtful analysis from Olivia Ford at The Body.com.

At the first HIV Is Not a Crime gathering in Grinnell, Iowa, in 2014, the sessions focused largely on unpacking the process of mounting a legislative campaign. Huntsville attendees also received training on important skills such as using data and collaborating with attorneys. The dominant theme, however, was the mandate to understand and combat HIV criminalization as a component of the system of over-policing and mass incarceration that disproportionately and unjustly impacts black people, queer folks, immigrants, drug users, sex workers, transgender individuals and those living with and without HIV at the intersections of this constellation of experiences.

The meeting was also an opportunity to celebrate the recent modernisation of Colorado’s HIV criminalisation statutes by the Colorado Mod Squad and their political allies, notably Senator Pat Steadman; and to hear from HIV criminalisation survivors and their families about what the HIV criminalisation – and the movement to end it – means for them personally.

The biggest political coup of the meeting was a welcome video from Hilary Clinton who said that if she wins the Presidential election, she will work to “reform outdated, stigmatising” HIV criminalisation laws.

Aside from those highlighted above, a number of other blog posts and articles have been produced since the meeting. As well as a fantastic Storify compilation by PWN-USA of social media produced during the four days, these include pieces from:

HIV Plus Magazine
Human Rights Campaign
Poz.com (Mark S King interview with Sero’s Sean Strub)
And participants including HIV criminalisation survivor Monique Howell-Moree; Gail Mahood; Jacob Anderson-Minshall; and Deondre B. Moore.

In addition, the HIV Justice Network was there with our video advocacy consultant, Nicholas Feustel of georgetown media, capturing the entire event on video, and we will be releasing a film providing a detailed overview of the entire meeting, as well as lessons learned, in the next few weeks.

Russia: Gay propaganda law especially impacting men with HIV who are being blackmailed for not disclosing their HIV status by anti-gay gangs

Russian crime gangs find gays easy targets for blackmail

By VERONIKA SILCHENKO and IRINA TITOVA

Originally published by the Associated Press on Jun. 5 2016

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In this Wednesday, May 25, 2016 photo, Alexander Loza, a legal adviser at Positive Dialogue, an organization that provides consulting services for gays, speaks to the Associated Press in St. Petersburg, Russia. Russian crime gangs find gays easy targets for blackmail. In the past two years, an increasing number of gays has fallen victim to criminal gangs operating through gay dating sites, rights groups say. (AP Photo/Dmitri Lovetsky)

“Many gay people in Russia lead a double life, unwilling to disclose their sexual orientation to their family or at work,” Loza said. “In the case of such setup dates, they are afraid to disclose their [HIV] status, to be accused of pedophilia, and therefore they are afraid to appeal to the police.”

ST. PETERSBURG, Russia (AP) — Criminal gangs in Russia, operating through gay dating sites, have found a lucrative new blackmail target: homosexual men.

A St. Petersburg economist, one of their latest victims, said several men burst into the apartment where he was meeting his date. Claiming that his date was under age, they threatened to call the police and to release a video they had secretly filmed unless he paid up.

The gay rights group Vykhod, or Coming Out, said they registered 12 such attacks in St. Petersburg in 2015 and at least six more gay men have come to them so far this year. LGBT activists believe the real number is far higher and say the attacks have increased in the past two years.

Since homosexuality finds little acceptance in Russian society, many gays keep their sexual orientation hidden from their families, friends and co-workers. This makes them easy extortion targets for criminals.

Vykhod spokeswoman Nika Yuryeva said most of the recent attacks have followed the same pattern as the one seen by the St. Petersburg economist.

Alexander Loza, a legal adviser at Positive Dialogue, an organization that provides consulting services for gays, particularly those living with the HIV virus, has heard similar stories.

“Many gay people in Russia lead a double life, unwilling to disclose their sexual orientation to their family or at work,” Loza said. “In the case of such setup dates, they are afraid to disclose their status, to be accused of pedophilia, and therefore they are afraid to appeal to the police.”

The activists said Russian criminals have been emboldened by a 2013 law that made it a crime to expose children to gay “propaganda,” part of a Kremlin-backed effort to defend traditional family values and counter the influence of what it considers a decadent West.

Alexander Zhelezkin, who manages outreach programs at Positive Dialogue, said the law was what made him decide to become a gay activist.

“Now, my coming out is my defense,” he said.

For prominent television journalist Anton Krasovsky, however, that move ended his career in Russia. He was fired after he came out on the air in 2013 and hasn’t been able to find a job in television since.

Krasovsky said it will be a long time before gays in Russia feel protected enough to speak publicly about their sexual orientation.

“To stop being afraid, they need to begin to trust the state where they live, but they don’t trust the state where they live now,” he said.

The St. Petersburg economist, however, did go to the police. He spoke to The Associated Press on condition of anonymity out of fear that his attackers, who know where he lives, would seek retribution if they learned that he had reported them.

The economist, who gave his age as “about 30,” said he thought they were lying about his date being a minor. But he said the attackers beat and threatened him — and suggested they had friends in the police force who they said would lock him up on fabricated charges.

He said they demanded more than 100,000 rubles ($1,500). One of them took his bank card and cleaned out his account, and they released him only after he agreed to transfer the balance the next day, he said.

The crime gangs who carry out such attacks are not necessarily anti-gay, but have identified a profitable niche where they feel they can operate with impunity, Loza and Yuryeva said.

The economist agreed.

“They commit these crimes not because they are homophobes — they are simply taking advantage of the situation,” knowing that few people would go to the police after such an experience, he said. “I think they are just common criminals who chose this kind of method.”

St. Petersburg police spokesman Vyacheslav Stepchenko said he had not heard about these blackmail cases and said he wasn’t aware of any anti-gay attacks being registered in the city in recent years.

He offered to check with the specific police station that the economist reported the crime to, but the economist didn’t want to draw public attention to his case by disclosing which station it was.

Timur Bulatov, an anti-gay activist who claims to have helped get a number of teachers fired after outing them as homosexuals, said he sees no need to resort to the blackmail used by criminal gangs.

“Why attack a sick person? Such a person needs treatment,” he said. “I have a bunch of legal methods to use to influence such a person, to put pressure on him.”

Bulatov, who wears camouflage outfits and carries a handgun in a hip holster, said gays are the “enemies” of Russian society and its children, but should be opposed only through legal means.

He said the law banning gay propaganda among minors was intentionally made vague so it can be applied in a wide range of circumstances. The law, for instance, has made it easy to target gay and lesbian teachers in Russia because they work directly with children.

The federal law was modeled on a 2012 St. Petersburg law authored by Vitaly Milonov, a city lawmaker and outspoken opponent of LGBT rights.

“This law is a preventive measure. It was introduced not to punish anyone, but to prevent such public actions as gay parades, because parents in Russia don’t want their children to see these things,” Milonov told the AP.

Milonov, who has a large portrait of the Russian Orthodox Church patriarch on his office wall, said his mission was to promote “normal” families with many children.

“There is no oppression of homosexual people in Russia,” he said. “When gay organizations complain of such harassment, they do it in order to get more money from soft-hearted Europeans.”

US/Canada: Elton John AIDS Foundation on why they support civil society organisations working to end HIV criminalisation

Zimbabwe: The persecution and prosecution of Harare model highlights reasons why HIV should not be criminalised

For the past few weeks, social and conventional media have been awash with the most heinous of headlines — “Harare model injects lover’s son with HIV.”

BY BELLINDA CHINOWAWA & ELIZABETH MANGENJE

An outraged public bayed for her blood, denouncing the model and calling for her immediate incarceration. After an invasive HIV test, it emerged that the allegations against the model were false, and that she is just another victim of the poorly crafted section 79 of the Criminal Law (Codification and Reform) Act, which in part reads as follows;

“ Any person who

(a) Knowing that he or she is infected with HIV; or

(b) Realising that there is a real risk or possibility that he or she is infected with HIV

Intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.”

The wording of this provision is objectionable because:

It criminalises sexual intercourse

Under this section, any person who has had sexual intercourse can be arrested and prosecuted, as with every sexual encounter, there is a risk or possibility of infection with HIV. Scientific research shows that no one method is 100% effective in protecting against the risk of infections. Having safe sexual intercourse is, strictly speaking, irrelevant for the purposes of this provision. A dangerously wide offence has been created.

It creates conditions for false incrimination

It is currently not possible in this country to tell who was infected first. Thus, the story which carries the day is that of the person who reports to the police first. This disadvantages women, who by reason of their reproductive health needs invariably get to know their status first as antenatal care services make HIV-testing compulsory for women. The only option for women to avoid prosecution under section 79 is to avoid antenatal care services or to opt out of HIV-testing, notwithstanding the danger that these decisions present for their own health, the health of their unborn babies and the community at large.

It does not reduce the spread of HIV

There is no evidence that applying criminal law to HIV risk behaviour incapacitates, rehabilitates, or deters offenders.

It promotes fear and stigma

Prosecution under section 79 is typically accompanied by inflammatory and ill-informed media coverage and this only serves to reinforce stigma against people living with HIV.

It penalises a conjectural likelihood

In terms of section 79, one does not actually have to have infected someone with HIV for a court to find that there has been “deliberate transmission of HIV”. Where a person facing charges under this section is tested and found positive, then a court must convict them, whether or not any transmission took place!

It disproportionately affects the already marginalised

Due to the persistence of deep-rooted prejudice against groups such as commercial sex workers, there is a real possibility that criminal prosecution will disproportionately affect them, as they are easy targets for such a witch hunt.

Data and evidence collected in 15 years (1986-2001) on prosecution for HIV transmission or exposure in the United States as well as several studies conducted around Europe revealed that most of the individuals convicted for HIV transmission or exposure were in vulnerable social and economic positions, including, commercial sex workers and prisoners.

Thus, it is arguable that section 79 of the Criminal Law (Codification and Reform) violates section 56 of the Constitution which guarantees non-discrimination and equal protection of the law. A law that puts people at risk of prosecution and 20 years imprisonment for a crime whose elements are not sufficiently clear for them to regulate their conduct cannot be said to be in line with the protection guarantee under the Constitution. As Edwin Cameron, a Judge of the Supreme Court of Appeal of South Africa, has noted, “prosecutions for HIV transmission and exposure, and the chilling content of the enactments themselves, reinforce the idea of HIV as a shameful, disgraceful, unworthy condition.”

The persecution and prosecution of the Harare model is proof of all the reasons why HIV should not be criminalised. The general criminal law is sufficient to deal with instances where a person maliciously and deliberately infects others with HIV, and in other jurisdictions, such persons are charged with assault, or attempted murder. There is no proof that criminalising HIV transmission will achieve either criminal justice or prevents HIV transmission.

The sentiment behind section 79 is understandable — it is grounded in the belief that, given the deleterious nature of HIV, any person living with it, has a moral duty to avoid infecting others. In this instance, however, the criminal law is a blunt instrument, imprecise and heavy-handed, leaving a trail of destruction in its wake. The criminalisation of HIV transmission threatens a human rights response to HIV that empowers people to avoid infection or live successfully with HIV. As UNAIDS has noted, instead of applying criminal law to HIV transmission, governments should expand programmes which have been proven to reduce HIV transmission and strengthen and enforce laws against rape and other forms of sexual violence against women and children.

The events of the past few weeks have shown that Section 79 of the Criminal Law (Codification and Reform) Act is overly-broad, and open to abuse. It only serves to entrench stigma and discrimination, and has no place in a society ostensibly founded on recognition of the inherent dignity and worth of each human being.

l Bellinda Chinowawa and Elizabeth Mangenje are project lawyers with Zimbabwe Lawyers for Human Rights

Originally published in The Standard

US: American Psychological Association adopts resolution opposing HIV criminalisation

The American Psychological Association (APA) has adopted an evidence-informed resolution on HIV criminalisation in the United States.

It was developed with feedback from the APA Committee on Legal Issues and the HIV Medicine Association – who themselves issued a Policy Statement on HIV Criminalization in 2015 – along with the Sero Project and The Center for HIV Law and Policy.

According to the background document:

We believe an APA resolution will strongly encourage states with HIV criminalization laws to repeal such laws and provide psychologists practicing in relevant states with guidance on the impact that HIV-specific laws may have on their patients, clients, and the general public’s health.

The resolution, adopted by the Council of Representatives in February 2016 and published on March 15th, can be read in full on the APA website.

It includes the following key messages:

THEREFORE be it resolved that APA opposes HIV criminalization and recommends the repeal or reform of these laws to eliminate HIV-specific criminal penalties with the exceptions of 1) a person with known HIV committing a sex crime where there is risk of transmission, and 2) a person with known HIV who has the intent to transmit the virus and is engaged in a behavior with a high risk of transmission;

BE IT FURTHER RESOLVED that laws that are not in alignment with the current scientific evidence on HIV transmission should be repealed;

BE IT FURTHER RESOLVED that laws that criminalize behaviors posing low or negligible risk for HIV transmission should be repealed or reformed and better aligned with contemporary scientific evidence regarding HIV transmission probabilities for specific behaviors and the efficacy of risk-reduction activities (e.g., consistent condom use);

BE IT FURTHER RESOLVED that laws that target PLHIV and engender harsher sentencing should be repealed;

BE IT FURTHER RESOLVED that laws that increase likelihood of incarceration for PLHIV should be repealed;

BE IT FURTHER RESOLVED that laws that undermine national HIV prevention efforts should be repealed;

BE IT FURTHER RESOLVED that criminalization laws that increase the risk of and intimate partner violence to, and control of women and other vulnerable people with HIV should be repealed;

BE IT FURTHER RESOLVED that laws that specifically target and criminalize PLHIV should be repealed;

BE IT FURTHER RESOLVED that laws that discriminate and stigmatize against PLHIV should be repealed;

BE IT FURTHER RESOLVED that psychologists practicing in states with HIV-specific criminalization laws are encouraged to better understand the impact of these laws on their patients who have HIV or who may be at elevated risk for HIV infection.

Canada: Latest unjust HIV non-disclosure conviction highlights everything that’s wrong with Canada’s approach

Analysis: Canada’s newest sex offenders

On March 1, a 29-year-old indigenous woman in Manitoba was sentenced to prison for the crime of aggravated sexual assault. More than four years ago, Marjorie Schenkels had sex without a condom with a friend on three occasions. Schenkels did not disclose the fact that she is HIV-positive. Schenkels, a survivor of sexual violence in both her family and relationships, is now registered as a sex offender and will spend the next two years in jail.

This is where the Supreme Court of Canada, and prosecutors, have brought us with their overly broad use of criminal law when it comes to HIV. Because of a series of much-criticized decisions that equate HIV non-disclosure before sex with sexual assault, indigenous women living with HIV are now a new face of sexual offender in this country.

Schenkels’ case is a window into this miscarriage of justice. As in many other cases of HIV non-disclosure, the sentencing judge found that there was no lie, manipulation or exploitation by Schenkels. Rather, her silence was the result of fear and denial. Nor was there any evidence that she actually transmitted the virus to the complainant who has since tested positive for HIV. But because the Supreme Court ruled that HIV non-disclosure before sex can amount to fraud invalidating consent to sex, people living with HIV can be convicted of aggravated sexual assault — an offence usually reserved for the most violent cases of sexual assault — even if the sex was neither forced nor coerced, there was no intention to harm and HIV was not transmitted.

Criminalizing HIV non-disclosure is often perceived as a means of protecting women. This perception is reinforced by the fact that the charge used to prosecute people for not disclosing the fact they have HIV is sexual assault. But criminalizing HIV non-disclosure does not protect women from HIV, nor from gender-based violence nor the inequality in which it is rooted. What it does do is put women living with HIV — especially those in abusive relationships — at increased risk of violence, abuse and prosecution. For many indigenous women, particularly those surviving a legacy of colonization and the intergenerational effects of residential schools, the overly broad criminalization of HIV non-disclosure has only institutionalized another form of violence against them.

As of today, at least 17 women living with HIV have been prosecuted for HIV non-disclosure in Canada. Most of them were already living on the margins, already facing a greater risk of acquiring HIV and making it even more challenging to disclose their status. Some of those women, like Schenkels, are indigenous; also like her, some are survivors of sexual or other violence. Many were and are living in poverty or with little income security. Some had precarious immigration status. Add to this marginalization the dilemma of revealing a heavily stigmatized status such as being HIV-positive or facing criminal charges for one of the most serious offences in the Criminal Code. This bind does not help or protect women.

When a person does not disclose they have HIV, it is usually not about asserting force over another person in order to gain sexual gratification, but rather the result of fear of violence or other harm, rejection or denial. By associating HIV non-disclosure with sexual assault, we are both harming people living with HIV and seriously undermining the law of sexual assault. These concerns are not limited to the HIV community. Feminist scholars and advocates are also questioning the value of such use of the law, as captured in a new documentary film, Consent: HIV non-disclosure and the law of sexual assault. (see below; the image above is a still from the film).

As one of the film’s experts asks, “What does it do to our understanding of sexual assault law as a vehicle to promote women’s equality if the new faces of sex offenders are young, racialized, aboriginal or street-involved women?” It is a bitter irony that Consent was publicly screened in Winnipeg the day of Schenkels’ sentencing hearing.

Schenkels’ case brings Canadians, once again, face to face with the cruelty of a justice system that not only fails to protect women from sexual violence, but also ensnares the most vulnerable, despite their efforts to overcome their struggles. Schenkels is taking responsibility for her life and her former actions. She is married and a caregiver to her partner’s child, and she is accessing HIV care. Even the sentencing judge acknowledged she was considered “a viable candidate for community supervision” rather than imprisonment. Nevertheless, she will spend the next two years in an institution notorious for its limited resources for addressing the health needs of its population, especially those living with HIV. It’s a tragic illustration of how equating HIV non-disclosure with sexual assault makes women less safe and simply multiplies the forms of systemic violence that women living with HIV suffer.

Cécile Kazatchkine is a senior policy analyst and Vajdon Sohaili is director of communications for the Canadian HIV/AIDS Legal Network. Laverne Gervais is the project co-ordinator of Sisters of Fire at Ka Ni Kanichihk.

This piece was originally published in the Winnipeg Free Press.

Consent: HIV non-disclosure and sexual assault law from AIDSLAW on Vimeo.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mexico: Human Rights Commission files motion before Supreme Court arguing Veracruz law criminalising 'wilful transmission' of HIV and STIs is unconstitutional

Because the amendment to Article 158 of the Criminal Code of Veracruz, called “contagion” criminalizes the transmission of sexually transmitted infections, and establishes a sentence ranging from 6 months to 5 years in prison and a fine of up to 50 days’ pay for those who “willfully” infecting another person sexually transmitted disease, a contravention of Article 1 of the Constitution of the United States Mexicans, at 24 of the American Convention on Human Rights and 26 of the International Covenant on Civil and Political Rights, the National Commission on Human Rights (CNDH) filed a motion before the Supreme Court of Justice of the Nation.

That article, which provides between these infections to HIV and human papillomavirus, he was published in the Official Journal of Veracruz on 1 December and, according to the CNDH, is discriminatory because it “generates a differentiation unnecessary and unjustified that becomes discriminatory. ”

This, because, argues the CNDH, the new content of the article “generates a discriminatory treatment in Subject to the people, and that criminalize putting willful in danger of disease transmission, generates two assumptions: that it is sexually transmitted infections and cases of serious disease. ”

According to the document, this situation leads to “different treatment for sexually transmitted infections with respect any other illness, by the than is rock specifically the condition health perpetrator when he suffers STDs, generating so a distinction legal between Who suffer a disease acquired by sexually transmitted Y those with any other disease acquired through diverse. ”

In addition, it is emphasized that the amendment does not meet the objective of preventing argued transmission of STIs against women and girls, finding themselves in vulnerable situations, but caused a differentiation based on the condition of true kind from infections, in East case from sexually transmitted, and describe them as serious, a fact that is not real, because not all infections of this court are serious.

Thus, the declaration of unconstitutionality of the article is requested and all those rules than are related.

Thus, the CNDH responded to the request of the Multisectoral Group on HIV / AIDS and STIs of Veracruz and other civil society organizations, which have stated that “the international guidelines on HIV and Human Rights based on evidence scientific point to legislate and punish not prevent new infections or reduce women’s vulnerability and what we do accomplish is a negative impact on public health and human rights. ”

It is expected that in the coming weeks the Supreme Court of Justice of the Nation attracts unconstitutionality for discussion and analysis.

Stop the Prague Public Health Authority’s persecution and intimidation of people living with HIV [Press release]

Pan-European Networks of communities of people living with and affected by HIV, doctors and scientists call upon the Government of the Czech Republic to immediately stop the Prague Public Health Authority’s persecution and intimidation of people living with HIV, and to return to evidence-based and proven practices in HIV prevention, testing and care in the Czech Republic.

Brussels, 19 February 2016 – The signatories of this open letter, representing communities of people living with, and affected by HIV, doctors and scientists addressing HIV and co-infections in Europe, are extremely concerned that the Prague Public Health Authority has initiated a police investigation into the sex lives of 30 men living with HIV on the sole grounds that these men have been diagnosed with a sexually transmitted infection (STI).

We understand that the Czech police are currently conducting investigations and are considering pressing charges against these men claiming that they have violated the provisions of Sections 152 and 153 of the Czech Criminal Code.

There is no evidence that punitive approaches to regulating the consensual sexual behaviour of people with living HIV are an effective HIV prevention or public health tool, but there is evidence that such approaches can be counterproductive by further stigmatising people with HIV, sending those in need of testing and treatment underground, harming individual and public health.

In addition, the release of medical information to the police appears to be a grave violation of personal freedoms of individuals living in the Czech Republic. The initiation of criminal prosecution against people living with HIV for alleged intentional gross bodily harm – despite the lack of a single complainant – raises grave concerns regarding the inappropriate application of criminal law to people living with HIV.

We also understand that a number of non-governmental organizations have recently spoken out against the acts of the Prague Public Health Authority and subsequent police investigation and they will approach the Czech liaison at the UN High Commissioner for Human Rights. Please also note that the responsible UNAIDS representative has already been informed and will receive further briefing from us.

With this letter we express our outrage at these human rights violations, and support the groups within the Czech Republic who initially raised objections and are working to support both people with HIV and the public health of all those living in the country.

Our main objections to the recent development are based on several arguments:

It violates the fundamental human right to personal integrity and privacy (Art 7 Sec. 1 of the Charter of Fundamental Rights and Freedoms), and breaches the Czech Republic’s international obligations under the existing National HIV/AIDS Strategy;
It is counterproductive to public health, ignoring well established WHO and UNAIDS recommendations on appropriate use of public health and criminal law as it relates to HIV. Evidence shows that criminalisation of HIV non-disclosure, potential or perceived exposure or non-intentional transmission deter people from getting tested and force them to hide their HIV status and/or sexual orientation, thus reducing opportunities for treatment which greatly reduces infectiousness.
There is a substantial body of evidence to show that the overly broad HIV criminalisation, in any form, is harmful for both individuals and society as it leads to increased latency of the epidemic, deters people from getting tested and treated, and thus ultimately contributes to a growing epidemic. We recognize that there has been a constant and alarming increase in the rate of new HIV infections in Europe in the last ten years. However, the active discrimination and violation of the human rights of any group of society will not contribute to the curbing of the epidemic.
The proposed prosecution of people living with HIV for alleged intentional spread of infectious diseases, or in fact the transfer of any health-related data of individual from the health care system to law enforcement organisations is potentially a violation of the European Union’s Data Protection Directive.

We demand that the Government of the Czech Republic adheres to the international principles and treaties, and scientific evidence universally accepted in the practice of HIV prevention, and we also demand that the current level of HIV care in the country is maintained and improved to assure at-risk groups feel that getting tested for HIV is and should be a reasonable decision for them. Nothing is as effective in linking to and retention in care than disseminating the right information, and fighting stigma and discrimination against people living with HIV, or any other groups such as men having sex with men. The active discrimination and legal persecution of people with HIV is in diametrical opposition to this evidence.

The signatories will continue to support local non-governmental organisations and other actors in their efforts to prevent HIV criminalization becoming a public health policy. We call on the Government of Czech Republic to ensure that the Prague Public Health Authority reverses this policy and ends police investigations of people with HIV simply for being diagnosed with an STI and instead relies on good public health practice as the most effective strategy to deal with HIV/AIDS.

Speaking on behalf of millions of people living with and affected by HIV across Europe, as well as experts in HIV science, public health and human rights, the signatories are ready to provide advice, guidance and the collection of good practices relating to HIV prevention to the government.

Contact:

HIV Justice Network: Edwin J Bernard, edwin@hivjustice.net

European AIDS Treatment Group: Tamás Bereczky on tamas.bereczky@eatg.org

Download and share the letter (with references). Also available on the EATG website

Open Letter to Prague Public Health Authority

Footnote: At the request of Czech AIDS Society a number of organisations representing European networks of communities of people living with and affected by HIV, doctors and scientists wrote today to head of Prague’s Public Health Authority to raise our concern about the initiation of a police investigation into the sex lives of 30 men living with HIV on the sole grounds that these men have been diagnosed with a sexually transmitted infection (STI).

We hereby would like to stress that disseminating the right information, and fighting stigma and discrimination against people living with HIV, or any other groups such as men having sex with men has proved have proved to be effective in responding to the epidemic, to link to and retain persons in care. The active discrimination and legal persecution of people with HIV is in diametrical opposition to this evidence.

Letter to Dr. Zdeňka Jágrová, Hygienicka, Head of the Prague Public Health Authority