Kenya: KELIN to challenge President Kenyatta's plan to keep a list of every child and breastfeeding/expectant mothers living with HIV
Canada: Academic article explores problematic police and media practices relating to allegations of HIV non-disclosure, proposes solutions
Kyle Kirkup explores Canadian police and media practices that stigmatize people living with HIV (PLWH) and facilitate the public’s belief that HIV and PLWH are dangerous. In support, Kirkup analyzes the 2010 case of an Ottawa man living with HIV arrested for sexual assault, which involved the public release of the man’s identity, photo, sexual health, and sexual encounters in an article headlined “Have you had sex with this man?”
The ensuing discourse of gay male sexuality using tropes from the HIV epidemic in the 80s illustrates, Kirkup argues, how a lack of police and media regulation and education continue to produce a punitive and isolating environment for PLWH.
Kirkup proposes several strategies for reform, including expanding publication bans and non-disclosure legislation, changing police ethics to keep private information out of the hands of journalists, educating journalists and public officials about the medial realities of HIV transmission risk and medical prognosis, and abandoning the “aggravated sexual assault” charge based on HIV status.
Canada: New film explores the impact of using sexual assault law to prosecute HIV non-disclosure
This week sees the release of an important new short film from the Canadian HIV/AIDS Legal Network.
Consent: HIV non-disclosure and sexual assault law interrogates whether criminalising HIV non-disclosure does what the Supreme Court of Canada believes it does – protect sexual autonomy and dignity – or whether, in fact, it does injustice both to individuals charged and to the Canadian criminal justice system’s approach to sexual violence.
Produced together with Goldelox Productions, with whom the Legal Network also collaborated on their powerful 2012 documentary’ Positive Women: Exposing Injustice, this 28-minute film features eight experts in HIV, sexual assault and law whose commentary raises many questions about HIV-related legal developments in Canada.
At a time when society seems to be taking the prevalence of sexual violence and rape culture more seriously, this film dares to ask some difficult questions about its limits in the law. The law of sexual assault is intended to protect women’s sexual autonomy, equality and dignity, yet as applied with respect to alleged HIV non-disclosure, these values are not necessarily being advanced. Through expert testimonies, Consent shines a light on the systemic obstacles women face in disclosing their HIV status, points to the dangerous health and human rights outcomes of applying such a harsh charge as aggravated sexual assault to HIV non-disclosure, and makes the argument that the law needs to better protect those who are living with and vulnerable to HIV. Consent demonstrates that advocacy efforts opposing the overly broad criminalization of HIV non-disclosure must address the use of sexual assault law and that such efforts must do so alongside feminist allies. From: http://www.consentfilm.org/about-the-film/
The Canadian HIV/AIDS Legal Network has for some time been exploring the implications of using sexual assault law to prosecute HIV non-disclosure cases, given the marked differences between the types of conduct that are typically referred to as sexual assault (including rape) and HIV non-disclosure cases.
In April 2014, the Legal Network convened leading feminist scholars, front-line workers, activists and legal experts for a ground-breaking dialogue on the (mis)use of sexual assault laws in cases of HIV non-disclosure. Consent: HIV non-disclosure and sexual assault law was filmed during this convening.
Their analysis demonstrates that the use of sexual assault law in the HIV non-disclosure context – where the sexual activity is consensual other than the non-disclosure – is a poor fit and can ultimately have a detrimental impact on sexual assault law as a tool to advance gender equality and renounce gender-based violence.
The Consent website ( in English / in French ) also lists future screenings across Canada, which will be accompanied by panels and workshops, as part of an ongoing strategy to build up allies among women’s rights advocates for the longer-term work.
A discussion guide will also soon be available.
Ireland: Social science research article explores impact of HIV stigma on gay men's willingness to disclose HIV status
The accounts of a group of gay men living with HIV in Dublin, most of whom rarely, if ever, disclose their HIV status to casual sexual partners, starkly reveal the extent of HIV stigma within the gay community, according to a qualitative study published online ahead of print in Qualitative Health Research. While interviewees feared being sexually and socially excluded on account of their HIV status, they also stigmatised others living with HIV and rejected a shared identity.
For this in-depth, small-scale study, Patrick Murphy of the National University of Ireland Galway interviewed 15 gay men living with HIV in Dublin, all of whom were taking HIV treatment and had casual sexual partners. Participants were aged between 21 and 48 years and had been diagnosed with HIV for between six months and 20 years. Half were born in other European countries or in the Americas. Interviews were conducted in 2013.
Among these individuals, not disclosing HIV status to casual partners was common. In addition more than half had never disclosed their status to a gay friend. Murphy identified three ways in which the interviewees constructed the experience of not disclosing their status, each inextricably linked with stigmatising discourses surrounding HIV.
Canada: New study finds majority of women living with HIV who also inject drugs face legal obligation to disclose HIV status to sexual partners
A new study presented to the International AIDS Society conference in Vancouver, Canada last week (IAS 2015) found that 44 per cent of participants within a research cohort of people who use injection drugs living with HIV in Vancouver would be legally obligated to disclose their HIV status to their sexual partners. Within the study, 65 per cent of male participants compared with only 45 percent of female participants satisfied the Supreme Court of Canada’s legal test for HIV non-disclosure, based on the October 2012 ruling in R v. Mabior.
Under current case law, people living with HIV must disclose their HIV status to a partner before sexual activity unless both a condom is used and a low HIV viral load is present.
The vast majority (98 per cent) of cohort participants in this study either self-reported always using a condom or achieved a low HIV viral load (<1500 copies/ml), and as such took steps to reduce the risk of HIV transmission to sexual partners. A person living with HIV who is appropriately treated and sustained on effective antiretroviral therapy will have an undetectable viral load, meaning the chance they will spread the virus is extremely low.
“The law as it currently stands places an additional veil of threat over an already vulnerable and criminalized population within one of Canada’s most impoverished communities,” said British Columbia Centre for Excellence in HIV/AIDS Director, and IAS 2015 conference co-chair, Dr. Julio Montaner. “Current non-HIV non-disclosure laws in Canada are not aligned with the state of the scientific evidence, and as a result create further stigma and fear around HIV.”
“The criminalization of HIV non-disclosure can affect people living with HIV in Canada in many ways,” said Valerie Nicholson, an Aboriginal woman living with HIV and the Chair of the Board of Directors at Positive Living BC. “People may face criminal charges for not disclosing, which can lead to lengthy and damaging criminal prosecutions – based on no scientific evidence. In the wider community, the law increases stigma and discrimination, does not account for power or control imbalances in relationships, compromises our ability to lead healthy sex lives and may introduce questions about the limits of confidentiality in the health care setting.”
The poster presentation of the study, “Gender differences in meeting legal obligations to disclose HIV status within a cohort of HIV-positive illicit drug users in Vancouver” is below.
World Health Organization publishes analysis of impact of overly broad HIV criminalisation on public health
A new report from the World Health Organization, Sexual Health, Human Rights and the Law, adds futher weight to the body of evidence supporting arguments that overly broad HIV criminalisation does more harm than good to the HIV response.
Drawing from a review of public health evidence and extensive research into human rights law at international, regional and national levels, the report shows how each country’s laws and policies can either support or deter good sexual health, and that those that support the best public health outcomes “are [also] consistent with human rights standards and their own human rights obligations.”
The report covers eight broad areas relating to sexual health, human rights and the law, including: non-discrimination; criminalisation; state regulation of marriage and family; gender identity/expression; sexual and intimate partner violence; quality of sexual health services; sexuality and sexual health information; and sex work.
The authors of the report note that it provides “a unique and innovative piece of research and analysis. Other UN organizations are examining the links between health, human rights and the law: the United Nations Development Programme’s (UNDP’s) Global Commission on HIV and the Law published its report in 2012, and the Office of the High Commissioner for Human Rights (OHCHR) and United Nations Special Rapporteurs regularly report to the Human Rights Council on the impact of laws and policies on various aspects of sexual health. Nevertheless, this is the first report that combines these aspects, specifically with a public health emphasis.”
The points and recommendations made relating to overly broad HIV criminalisation (italicised for ease of reference) are included in full below.
Executive Summary: The use of criminal law (page 3)
All legal systems use criminal law to deter, prosecute and punish harmful behaviour, and to protect individuals from harm. However, criminal law is also applied in many countries to prohibit access to and provision of certain sexual and reproductive health information and services, to punish HIV transmission and a wide range of consensual sexual conduct occurring between competent persons, including sexual relations outside marriage, same-sex sexual behaviour and consensual sex work. The criminalization of these behaviours and actions has many negative consequences for health, including sexual health. Persons whose consensual sexual behaviour is deemed a criminal offence may try to hide it from health workers and others, for fear of being stigmatized, arrested and prosecuted. This may deter people from using health services, resulting in serious health problems such as untreated STIs and unsafe abortions, for fear of negative reactions to their behaviour or health status. In many circumstances, those who do access health services report discrimination and ill treatment by health-care providers.
International human rights bodies have increasingly called for decriminalization of access to and provision of certain sexual and reproductive health information and services, and for removal of punishments for HIV transmission and a wide range of consensual sexual conduct occurring between competent persons. National courts in different parts of the world have played an important role in striking down discriminatory criminal laws, including recognizing the potentially negative health effects.
3.4.5 HIV status (pages 22-23)
Although being HIV-positive is not itself indicative of sexual transmission of the infection, individuals are often discriminated against for their HIV-positive status based on a presumption of sexual activity that is often considered socially unacceptable.
In addition, in response to the fact that most HIV infections are due to sexual transmission, a number of countries criminalized transmission of, or exposure to, HIV, fuelling stigma, discrimination and fear, and discouraging people from getting tested for HIV, thus undermining public health interventions to address the epidemic.
Even where persons living with HIV/AIDS may be able, in principle, to access health services and information in the same way as others, fear of discrimination, stigma and violence may prevent them from doing so. Discrimination against people living with HIV is widespread, and is associated with higher levels of stress, depression, suicidal ideation, low self-esteem and poorer quality of life, as well as a lower likelihood of seeking HIV services and a higher likelihood of reporting poor access to care.
HIV transmission has been criminalized in various ways. In some countries criminal laws have been applied through a specific provision in the criminal code and/or a provision that allows for a charge of rape to be escalated to “aggravated rape” if the victim is thought to have been infected with HIV as a result. In some cases, HIV transmission is included under generic crimes related to public health, which punish the propagation of disease or epidemics, and/or the infliction of “personal injury” or “grievous bodily harm”.
Contrary to the HIV-prevention rationale that such laws will act as a deterrent and provide retribution, there is no evidence to show that broad application of the criminal law to HIV transmission achieves either criminal justice or public health goals. On the contrary, such laws fuel stigma, discrimination and fear, discouraging people from being tested to find out their HIV status, and undermining public health interventions to address the epidemic. Thus, such laws may actually increase rather decrease HIV transmission.
Women are particularly affected by these laws since they often learn that they are HIV-positive before their male partners do, since they are more likely to access health services. Furthermore, for many women it is either difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences, and they may therefore face prosecution as a result of their failure to disclose their status. Criminal laws have also been used against women who transmit HIV to their infants if they have not taken the necessary steps to prevent transmission. Such use of criminal law has been strongly condemned by human rights bodies.
Various human rights and political bodies have expressed concern about the harmful effects of broadly criminalizing the transmission of HIV. International policy guidance recommends against specific criminalization of HIV transmission. Human rights bodies as well as United Nations’ specialized agencies, such as UNAIDS, have stated that the criminalization of HIV transmission in the instance of intentional, malicious transmission is the only circumstance in which the use of criminal law may be appropriate in relation to HIV. States are urged to limit criminalization to those rare cases of intentional transmission, where a person knows his or her HIV-positive status, acts with the intent to transmit HIV, and does in fact transmit it.
Human rights bodies have called on states to ensure that a person’s actual or perceived health status, including HIV status, is not a barrier to realizing human rights. When HIV status is used as the basis for differential treatment with regard to access to health care, education, employment, travel, social security, housing and asylum, this amounts to restricting human rights and it constitutes discrimination. International human rights standards affirm that the right to non-discrimination includes protection of children living with HIV and people with presumed same-sex conduct. Human rights standards also disallow the restriction of movement or incarceration of people with transmissible diseases (e.g. HIV/AIDS) on grounds of national security or the preservation of public order, unless such serious measures can be justified.
To protect the human rights of people living with HIV, states have been called on to implement laws that help to ensure that persons living with HIV/AIDS can access health services, including antiretroviral therapy. This might mean, as in the case of the Philippines, for example, explicitly prohibiting hospitals and health institutions from denying a person with HIV/AIDS access to health services or charging them more for those services than a person without HIV/AIDS (167).
International guidance also suggests that such laws should be consistent with states’ international human rights obligations and that instead of applying criminal law to HIV transmission, governments should expand programmes that have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative.
3.6 Legal and policy implications (pages 29-30)
5. Does the state consider that establishing and applying specific criminal provisions on HIV transmission can be counter-productive for health and the respect, protection and fulfilment of human rights, and that general criminal law should be used strictly for intentional transmission of HIV?
The full report can be downloaded from the WHO’s Sexual and Reproductive Health website.
Kenya: Mandatory HIV reporting directive challenged as unconstitutional and a violation of people's rights
A directive by President Uhuru Kenyatta requiring the compilation of a report on all school children living with HIV and Aids has been challenged in court. The petitioners: Kenya Legal and Ethical Issues Network (Kelin), Children of God Relief Institute (Nyumbani) and two other parties, are apprehensive that compiling such a list violates the law and stigmatises the people living with HIV. High Court judge Mumbi Ngugi certified the matter as urgent and directed that the parties file and serve the relevant documents before the matter is heard tomorrow. The directive issued by the President on February 23 requires county commissioners and the ministries of Health, Education and Interior to collect up to date data and prepare a report on all school children living with HIV and information on their guardians. The directive further calls for information on expectant women and breastfeeding mothers who are HIV-positive. The petitioners stated that the Government agencies had proceeded to implement the directive without consulting people living with the virus, which they say contradicts Article 10 of the Constitution. See also: Leaders dismiss claims of ‘Kiambu-mafia’ machinations “The method of data collection under the said directive is prejudicial to the rights of the people living with HIV,” said Allan Maleche, the executive director at Kelin. He also said the National Aids Control Council (NACC) are holding the names illegally while implementing the president’s directive. Achesa stated in a sworn affidavit that the ministries had continued implementing the directive despite numerous advisory notes from his organisation, constitutional commissions and networks of people living with HIV. He added that a letter sent to the President on March 11 and a follow-up letter two weeks later were yet to be responded to. They now want the court to declare the directive unconstitutional and a violation of people’s rights. They also want the ministries and NACC to be compelled to destroy or codify all data in their possession collected as a result of the directive.
Read more at: http://www.standardmedia.co.ke/article/2000165780/president-uhuru-kenyatta-s-order-on-hiv-data-challenged-in-court
International Community of Women Living with HIV (ICW) publish updated position statement on overly broad HIV criminalisation
The International Community of Women Living with HIV (ICW) have published an updated position statement on the criminalisation of women living with HIV for non-disclosure, potential or perceived exposure, and transmission.
The statement highlights many problems with overly broad HIV criminalisation, but is notable for singling out issues that specifically relate to women living with HIV:
Critically, rather than reducing transmission of HIV, fear of prosecution may deter women from accessing needed treatment care and support, discourage disclosure, and increase vulnerability of women to violence…
Criminalization is often framed as a mechanism to protect women who are experiencing intimate partner violence or sexual assault. However, in practice there same laws intended to protect women often place them in increased risk for violence and increasing stigma surrounding HIV…
The criminalization of mothers for HIV transmission and/or exposure serves to further increase stigma for positive women who want to have children or who are pregnant, by blaming women for transmission.
ICW recommends the following:
- Repeal laws that criminalize non-intentional HIV exposure or transmission, particularly those that single out women living with HIV or people living with HIV for prosecution or increased punishment solely based on their HIV status.
- Empower women to know about the criminal context of HIV transmission and exposure.
- Enact legislation that promotes gender equality in the criminal justice system.
- Remove all laws that disproportionately target women living with HIV and marginalized groups.
- Promote community based awareness campaigns to address criminalization as a human rights violation.
- Train health care providers, and other support workers to ensure that confidentiality for women living with HIV is protected.
- Increase legal support for women living with HIV facing prosecution under these harmful laws.
Read the full position statement below.
Australia: Victoria’s HIV-specific criminal law, Section 19A, finally repealed today
In a joint media release, Living Positive Victoria and the Victorian AIDS Council have welcomed the passage of the Crimes Amendment (Repeal of Section 19A) Act 2015 by the Victorian Parliament. The Act repeals Australia’s only HIV-specific law criminalising the intentional transmission of HIV, section 19A of the Crimes Act 1958, which has been criticised for unfairly targeting and stigmatising people with HIV.
Live Tweets from Victoria’s Parliament today. To find out more about the five year campaign to repeal the law, read this blog post written for the HIV Justice Network by Paul Kidd, Chair of the HIV Legal Working Group.
The two organisations had called for the repeal of section 19A in the lead-up to the 2014 International AIDS Conference, held in Melbourne, as part of an advocacy effort designed to reduce the incidence of HIV-related criminal prosecutions in Victoria.
“Victoria has the unfortunate distinction of having had more HIV-related prosecutions than any other state, and until today had the only HIV-specific criminal law,” said Simon Ruth, Chief Executive Officer, Victorian AIDS Council. “Our organisations strongly believe that HIV should be treated as a health issue, and that criminal prosecutions should only be used in cases where transmission occurs and there is evidence the alleged perpetrator acted with intent.”
The use of the criminal law to control HIV has been roundly criticised by legal theorists, HIV experts and international agencies. The Joint United Nations Program on HIV/AIDS has called for HIV-specific criminal laws, like section 19A, to be repealed.
“Today we can be proud that Victoria has repealed its HIV-specific criminal law, and in doing so, reaffirmed its commitment to treating HIV as a public health issue and not a criminal justice issue. Government, community and industry need to work together if we are to meet our goal of eliminating HIV transmissions by 2020, and the multi-party support for repealing section 19A shows our legislators are listening and prepared to enact evidence-based policies,” said Brent Allan, Chief Executive Officer, Living Positive Victoria.
The repeal of section 19A will not legalise the intentional transmission of HIV, but will ensure that any allegation of intentional transmission is dealt with under general laws, the same as for other forms of injury. The campaign to repeal the laws highlighted the stigmatising effect of HIV criminalisation.
“Criminalising HIV transmission and exposure isn’t just ineffective as a method of prevention, it is actually counterproductive to our efforts because it perpetuates stigma,” said Paul Kidd, Chair of the HIV Legal Working Group. “We know the stigma around HIV is one of the biggest barriers to increasing testing and treatment, and enabling voluntary disclosure of HIV. Section 19A sent a false message that people with HIV are a danger to the community, and todays repeal shows the Parliament accepts that we are not.
“This is a law that was never needed, and should never have been enacted. It has not made Victorians safer, and in fact may have led to an increase in the number of people living with HIV. The whole Victorian community should be happy to see it go.”
The HIV Legal Working Group has been the recipient of GLOBE, VAC and Living Positive Victoria awards for its work on the repeal of section 19A. A community celebration of the repeal of section 19A is being planned and will be announced shortly.
In a blog post written exclusively for the HIV Justice Network, Paul Kidd highlights that although this battle has been won, the work against unjust prosecutions in Victoria is yet not over.
“Now that section 19A is gone, our work continues, he writes. “We still need to address the unacceptably high number of prosecutions for ‘HIV endangerment’ that occur in Victoria. We strongly believe we have a model that will deliver the right public health outcomes while safeguarding the public, without the use of expensive, ineffective and highly stigmatising criminal prosecutions. With the repeal of section 19A, our state government has recommitted itself to a health-based response to HIV, and we believe that gives us the best possible platform to continue our campaign for prosecutorial guidelines.”