US: Positive Women's Network – USA (PWN-USA) observes national day of action to end violence against women and demands the repeal of laws criminalizing people living with HIV

Oakland, CA – Women with HIV simultaneously live with the effects of trauma resulting from interpersonal, community, and institutional violence. Studies have shown that the lifelong and compounding effects of these different forms of violence may have consequences far deadlier than the virus itself. October 23, Positive Women’s Network – USA (PWN-USA), along with dozens of endorsing organizations, will observe our third Day of Action to End Violence Against Women Living with HIV, releasing a factsheet highlighting the many forms of violence impacting women living with HIV and their communities, with a special focus on criminalization, discriminatory law enforcement practices and other forms of structural violence, and to offer solutions and ways that government, institutions and organizations can help prevent and mitigate violence and trauma. We will also be hosting a Twitter chat Monday, Oct. 24, at 2 PM ET/11 AM PT to look at the promise of trauma-informed care for women living with HIV as a means to healing the trauma that is far too often a barrier to retention in care (follow the hashtags #pwnspeaks and #EndVAWHIV). Community events are also being held in various cities.
Laws criminalizing people living with HIV (PLHIV) disproportionately affect over-policed communities, including women of color (who make up 80% of the epidemic among women) and women of trans* experience. Harassment and brutality by police and law enforcement create hostile environments that perpetuate trauma in communities of color and other communities significantly impacted by HIV. Consequently, for the 2016 National Day of Action to End Violence Against Women Living with HIV, PWN-USA demands:
  • Repeal and reform of laws criminalizing HIV exposure, non-disclosure and transmission
  • An end to law enforcement practices that target communities disproportionately impacted by HIV, including people of trans and gender nonconforming experience (TGNC), sex workers, people who use drugs, immigrants, people who are unstably housed, people with mental illness, and communities of color
  • An end to stigmatizing and discriminatory interactions, methods of surveillance and brutalization of PLHIV and communities impacted by HIV at the hands of law enforcement
  • Elimination of barriers to safe, stable, and meaningful reintegration into the community for those returning home from jail and prison, those with criminal convictions, and the loved ones who support them.
PWN-USA called for the first Day of Action in 2014 in response to several high-profile murders of women following disclosure of their HIV status. Last year, community events were held in at least 18 cities, as well as a Twitter chat with 228 participants that reached 1.6 million people. 18 blog posts and statements were submitted by individuals and organizations in honor of the Day of Action. PWN-USA hopes this year’s day of action will continue to raise awareness, put forward solutions and mobilize advocates to push for meaningful change to end structural and institutional violence in the form of criminalization of our communities.

Canada: ‘HIV is not a crime’ documentary premieres in Montreal at Concordia University’s ‘The Movement to End HIV Criminalization’ event

Last week, Concordia Unversity in Montreal, Canada, held the world premiere public screening of HJN’s ‘HIV is not a crime training academy’ documentary, followed by three powerful and richly evocative presentations by activist and PhD candidate, Alex McClelland; HJN’s Research Fellow in HIV, Gender, and Justice, Laurel Sprague; and activist and Hofstra University Professor, Andrew Spieldenner.

The meeting, introduced by Liz Lacharpagne of COCQ-SIDA and by Martin French of Concordia University – who put the lecture series together – was extremely well-attended, and resulted in a well-written and researched article by student jounrnalist, Ocean DeRouchie, alongside a strong editorial from Concordia’s newspaper, The Link.

(The full text of both article and editorial are below.)

Presentations included:

  • Edwin Bernard, Global Co-ordinator, HIV Justice Network: ‘The Global Picture: Surveying the State of HIV Criminalisation’
  • Alex McClelland, Concordia University: ‘Criminal Charges for HIV Non-disclosure, Transmission and/or Exposure: Impacts on the Lives of People Living with HIV’
  • Laurel Sprague, Research Fellow in HIV, Gender, and Justice, HIV Justice Network: ‘Your Sentence is Not My Freedom: Feminism, HIV Criminalization and Systems of Stigma’
  • Andrew Spieldenner, Hofstra University: ‘The Cost of Acceptable Losses: Exploring Intersectionality, Meaningful Involvement of People with HIV, and HIV Criminalization’

Articles based on a number of these important presentations will be published on the HJN website in coming

weeks.

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The Movement to End HIV Criminalization

Decrying Criminalization

Concordia Lecture Series Prompts Discussion on HIV Non-disclosure

by Ocean DeRouchie — Published September 19, 2016 in The Link

The sentiment surrounding HIV/AIDS is often one of discomfort. But the reluctance to speak openly about such a significant and impactful disease is hurting the people closest to it.

Under current Canadian legislation, HIV non-disclosure is criminalized. It exercises some of the most punitive aspects of our criminal justice system, explained Alexander McClelland, a writer and researcher currently working on a PhD at Concordia.

McClelland was one of four panelists speaking under Concordia’s Community Lecture Series on HIV/AIDS on Thursday, Sept. 15 in the Hall building. The collective puts on multiple panel-based events in order to address the attitudes, laws, and intersections of political and socioeconomic stigma surrounding HIV/AIDS.

Talking About HIV, Legally

There are three distinct charges that guide prosecutors in HIV cases—transmission (giving the disease to someone without having disclosed your status), exposure (e.g. spitting or biting) and non-disclosure (not informing a sexual partner about your HIV/AIDS status).

Aggravated sexual assault and attempted murder are some of the charges that defendants often face, explained Edwin Bernard, Global Coordinator for the HIV Justice Network, during the discussion.

While there are clearly defined situations in which you are legally obligated to tell a sex partner about your HIV status, there are no HIV-specific laws. This results in the application of general law in cases that are anything but general.

In 2012, the Supreme Court of Canada established that “people living with HIV must disclose their status before having sex that poses a ‘realistic possibility of HIV transmission.’”

Aidslaw.ca presents a clear map of situations in which you’d have to tell a sex partner about your status because, in fact, it is not in all scenarios that you’d be legally required to have the discussion.

A lot of it depends on your viral load—the amount of measurable virus in your bloodstream, usually taken in milliliters. A “low” to undetectable viral load is the goal, and is achieved with anti-viral medication.

Treatment serves to render HIV-positive individuals non-infectious, and therefore lowering the risk of transmission. A “high” viral load indicates increased amounts of HIV in the blood.

If protection is used and with a low viral load, one might not have to disclose their status at all.

That said, there is a legal obligation to disclose one’s HIV-positive status before any penetrative sex sans-condom, regardless of viral load. You’d also have to bring it up before having any sex with protection if you have a viral load higher than “low.”

But not all sex is spelled out so clearly.

Oral sex, for instance, is a grey area. Aidslaw.ca says, “oral sex is usually considered very low risk for HIV transmission.” They write that “despite some developments at lower level courts,” they cannot say for sure what does not require disclosure.

There are “no risk” activities. Smooching and touching one another are intimate activities that, as health professionals say, pose such a small risk of transmission that there “should be no legal duty to disclose an HIV-positive status.”

Moving Up, and Out of Hand

Court proceedings are based on how the jury and judge want to apply general laws to specific instances. There are a lot of factors that can influence the outcome.

The case-to-case outlook leads to the criminal justice system dealing with non-disclosure in such a disproportionate way, said McClelland.

The situation begs the question: “Why is society responding in such a punitive way?” asked McClelland.

This isn’t to say that not disclosing one’s HIV status “doesn’t require some potential form of intervention,” he explained, adding that intervention could incorporate counseling, mental-health support, encouragement around building self-esteem and learning how to deal and live with the virus in the world. “But in engaging with the very blunt instrument that is the criminal law is the wrong approach.”

He continued to explain that the reality of the criminalization of HIV ultimately doesn’t do anything to prevent HIV transmission.

“It’s just ruining people’s lives,” said McClelland, who has been interviewing Canadians who have been affected by criminal charges due to HIV-related situations. “It’s a very complex social situation that requires a nuanced approach to support people.”

“It’s just ruining people’s lives. It’s a very complex social situation that requires a nuanced approach to support people.” – Alexander McClelland, Concordia PhD student

Counting the Cases

The Community AIDS Treatment Information Exchange, a Canadian resource for information on HIV/AIDS, states that about 75,500 Canadians were living with the virus by the end of the 2014, according to the yearly national HIV estimates.

That number has gone up since. On Monday, Sept. 19, Saskatoon doctors called for a public health state of emergency due to overwhelmingly increasing cases of new infections and transmission, according to CBC.

In Quebec, there have been cases surrounding transmission and exposure. In 2013, Jacqueline Jacko, an HIV-positive woman, was sentenced to ten months in prison for spitting on a police officer—despite findings that confirm that the disease cannot be transmitted through saliva.

In this situation, Jacko had called for police assistance in removing an unwelcome person from her home. Aggression transpired between her and the officers, resulting in her arrest and eventually her spitting on them, according to Le Devoir.

“[This case] is so clearly based on AIDS-phobia, AIDS stigma and fear,” added McClelland, “and an example of how the police treat these situations and use HIV as a way to criminalize people.”

Police intervention is crucial in the fight against HIV criminalization. McClelland urged people to consider the consequences of involving the justice system in these kinds of situations.

“It’s important to understand that the current scientific reality for HIV is that it’s a chronic, manageable condition. When people take [antivirals] they are rendered non-infectious,” he said. “They should then understand that the fear is grounded in a kind of stigma and historical understanding of HIV that is no longer correct today.”

The first instinct, or notion of calling the police in an instance where one feels they may have been exposed to the virus in some way is “mostly grounded in fear and panic,” he said.

“[Police] respond in a really disproportionate, violent way towards people—so I would consider questioning, or at least thinking twice before calling the police,” McClelland explained.

On the other hand, he suggested approaching the situation in more conventional, educational and progressive methods.

“I think it could be talked through in different ways—by going to a counselor, talking to a close friend, engaging with a community organization, learning about HIV and what it means to have HIV, and understanding that the risk of HIV transmission are very low because of people being on [antivirals].”

As for the current state of Canadian legislation, there are a lot of complexities that hinder heavy-hitting changes to the laws.

Due to the Supreme Court’s rulings in 2012, they are unlikely to review the decision for another decade. For now, the main course of action is “on the ground,” said McClelland. From mitigating people from requesting police involvement in order to “slow down the cases,” to raising awareness through events such as Concordia’s Community Lecture Series, and engaging with the people to resolve issues in community-based ways and collective of care.

Then, McClelland said, “trying to do high-level political advocacy to get leaders to think about how they can change the current situation” would be the next step.

Editorial: Community-Based Research is the Key to HIV Destigmatization and Decriminalization

Opinions by The Link — Published September 19, 2016

Receiving an HIV-positive diagnosis is already a life sentence. The state of Canada’s legal system threatens to give those living with the virus another one.

An HIV diagnosis is accompanied by its own set of complexities that are not encompassed in Canada’s criminal law. By pushing HIV non-disclosure cases into the same box as more easily defined assault cases, we are generalizing an issue that frankly cannot be simplified.

This does not reflect the reality that one faces when living with HIV. Criminalizing the virus further stigmatizes what should and could be everyday activities.

This puts the estimated 75,000 Canadians living with HIV at risk of being further isolated. This takes us backwards, considering the scientific progress that has been made to make living with the virus manageable. Under the proper antiviral medication, one’s risk of transmitting the disease is incredibly low. This stigma is rooted in an antiquated understanding of what HIV is and the associated risks—much of that fear having emerged primarily as a result of homophobia.

Further, with over 185 cases having been brought to court, Canada is leading in terms of criminalizing HIV non-disclosure. This pushes marginalized communities farther away. According to estimates from 2014, indigenous populations have a 2.7 higher incidence rate than the non-indigenous Canadian average. Gay men have an incidence rate that is 131 times higher than the rest of the male population in Canada.

As of Sept. 19, doctors in Saskatchewan are calling on the provincial government to declare a public health state of emergency, with a spike in HIV/AIDS cases around the province.

In 2010, it’s reported that indigenous people accounted for 73 per cent of all new cases in the province. Outreach and treatment for these communities are at the forefront of Saskatchewan’s doctor’s recommendations for the government.

With such a highly treatable virus, however, the problem should never have gone this far. It is an excerpt from a much bigger issue.

As we can see from the available statistics, HIV—both the virus and its criminalization—is a mirror for broader inequalities that exist within society. HIV related issues disproportionately affect racialized people, gender non-conforming people, and other marginalized groups.

Discussions around HIV also must include discussions around drug use. The heavy criminalization of injection drugs has created a context where users are driven deep underground, thus putting them at an incredibly high risk for contracting the virus. Treating drug use as a health rather than a criminal issue is an integral part of any effective HIV prevention strategy. Safe injection sites, such as Vancouver’s InSite, have made staggering differences in their communities and prove to be a positive way of combating the spread of HIV.

This is just one of the many ways that we can control the spread of HIV without judicial intervention, without turning the HIV-positive population into criminals.

Using community-based research enables us to not only understand the needs of the affected population—particularly when it comes to understanding the almost inherent intersectionality associated with the spread of HIV—but also allows us to better target our resources towards those who need it most.

Often times, that stretches to include those closest to HIV-positive individuals. Spreading awareness, and developing resources and a support network for them is just as important in fighting the stigmatization of the virus.

The Link stands for the immediate decriminalization of HIV non-disclosure, and the move towards restorative justice systems in non-disclosure cases. As always, those directly affected by an issue are the ones with who are best positioned to create a solution—something that the restorative justice framework embraces.

The disclosure of one’s HIV status is important. Jailing those who don’t disclose it, however, won’t make the virus go away. It simply isolates the problem, places it out of site and out of mind.

Criminalizing HIV patients is less about justice than it is about appeasing the baseless fears of the general population. It’s time for a more effective solution.

Analysis: How is Russia’s HIV-specific law being used to prosecute women living with HIV?

(For Russian version, please, scroll down)

At the beginning of 2016, a military officer from Moscow discovered that he was HIV-positive during routine testing. Later, his wife Natalia, who had tested positive for HIV several years ago, admitted that she had been afraid to disclose her HIV-positive status because she feared violent reprisals from her husband. The officer went to the police to commence criminal proceedings against Natalia, and the investigation continues. The media – as in most countries, our only source of information on cases like this – has not yet provided much more information about the case, so we do not know how long Natalia was forced to hide her HIV-positive status from her husband because of fear of violence.

This is not the only case started against a woman for alleged HIV transmission in 2016.

In January, 24-year-old Nadezhda, who lives in the Amur Oblast in the Russian Far East, was found guilty of charges of alleged HIV transmission to three men, under part 1, Art. 122, and part 3, Art. 122 of the Criminal Code (‘infecting others with HIV, knowing about the presence of this disease). She was sentenced to four years in a penal colony. Nadezhda appealed the verdict, but the panel of judges upheld both the verdict and her sentence.

More recently, in the summer of 2016, a 33-year-old woman from Bryansk, 379 kilometers southwest of Moscow, was prosecuted for allegedly infecting her male partner with HIV. The court used evidence that she was registered at an AIDS centre since 2007 against her, since she met the man in 2014. However, the court was relatively lenient, and she was given a three year suspended sentence followed by a three year probation period. In addition, consistent with best practice, her name was not disclosed in the media, in contrast to Nadezhda’s whose name was published in the news release by the Press Service of the Prosecutor’s Office.

At AIDS 2016 in Durban last month, the HIV Justice Network revealed new data showing that Russia now tops the global HIV criminalisation league table. We found reports of at least 115 arrests, prosecutions and/or convictions in Russia during the 30-month period: April 2013 to October 2015.

We have now collected eleven stories from the Russian media about women convicted under Article 122.

Since 2007, at least three of these women were sentenced to more than four years in prison for alleged HIV transmission to one or more partners. Another woman received a sentence of one year, seven months in prison, and a further two women had a suspended one-year and three-year sentence. In one case the court gave a 20 year-old woman 6-month’s probation. Verdicts for three cases are unknown.

It not just alleged HIV transmission that is being prosecuted; we also know of a 2013 case of a woman from the town of Kungur in the Perm Oblast, who was sentenced to spend one year and three months in a penal colony for potential or perceived HIV exposure: her partner was not infected.

Of particular concern is that in all of the above cases, evidence of prior knowledge of HIV-positive status came from medical records. In Russia, each newly-diagnosed person must sign an informed consent form indicating that he or she is informed of their potential criminal liability under Article 122 for HIV exposure and transmission. This informed consent is attached to their medical history, ready for an official request.

Furthermore, in cases of alleged HIV transmission, the public prosecutor did not adequately investigate the causal link between the accused and the complainant, because there is no test that can establish the timing and direction of transmission without any doubt. It is possible, for example, that some of the male complainants were infected before they had relationships with their female partners and before they themselves were diagnosed HIV-positive.

Article 122 was introduced into the Criminal Code, in particular, to protect women from HIV infection, but it is clear from our research that the law has been applied against women in Russia.

There are many reasons why women are vulnerable when HIV criminalisation intersects with gender inequality and violence. These include, but are not limited to, the following:

  • Women often do not make decisions about when to have sex, with whom, and whether or not to use condoms.
  • Women are often economically dependent on their partner, which increases the inequality in their relationships.
  • Unfortunately, there is evidence that intimate partner violence often occurs when a woman discloses her HIV status.
  • Fear of prosecution prevents women from getting tested, knowing their status, and getting HIV treatment, because many laws are applied precisely against those who know about their diagnosis.

There is a hope that shedding light on what is going on in Russia will help mobilize people around these unjust prosecutions. As new cases emerge we will continue to report on them on the HIV Justice Network website.

Evgenia Maron is the HIV Justice Network’s EECA Consultant

В начале 2016 года военный из Москвы во время регулярного обследования обнаружил, что инфицирован ВИЧ. Позднее его жена Наталья, которая получила положительный результат на ВИЧ за несколько лет до этого, пояснила, что боялась рассказать о своем ВИЧ-позитивном статусе из-за страха насилия и возмездия со стороны своего мужа. Военный обратился в полицию, чтобы возбудить дело против Натальи, расследование продолжается. СМИ – во многих странах наш единственный источник информации о таких делах, как это, –  не дают много данных об этом деле, поэтому мы не знаем, сколько лет Наталья вынуждена была скрывать свой ВИЧ-позитивный статус от мужа из-за страха насилия.
Это не единственное дело против женщин за передачу ВИЧ-инфекции в 2016 году.
В январе 24-летняя Надежда, которая живет в Амурской области на Российском Дальнем Востоке, была признана виновной в передаче ВИЧ трем мужчинам по части 1 ст. 122 и части 3 ст. 122 Уголовного Кодекса (“заражение другого лица ВИЧ-инфекцией лицом, знавшим о наличии данного заболевания”). Ей было назначено наказание в виде четырех лет лишения свободы с отбыванием в исправительной колонии общего режима. Надежда обжаловала приговор, но судебная коллегия оставила его в силе.
Совсем недавно, летом 2016 года, против 33-летней женщины из Брянска, что в 379 километрах к юго-западу от Москвы, было возбуждено уголовное дело за предположительное заражение своего друга ВИЧ. Суд использовал против нее тот факт, что женщина состояла на учете в СПИД-центре с 2007 года, а этого мужчину она встретила в 2014 году. Однако, решение суда было относительно мягким, женщине назначили условное лишение свободы на три года с таким же испытательным сроком. Кроме того, как и полагается в лучших практиках, ее имя и фамилию в СМИ не указывали, в отличие от Надежды из предыдущей истории, чье имя было опубликовано в релизе пресс-службы прокуратуры.
На конференции AIDS 2016 в прошлом месяце в Дурбане, Сеть «Правосудие и ВИЧ»  сообщила о новых данных, которые показывают, что Россия возглавляет топ лиги глобальной криминализации ВИЧ. Мы нашли сообщения о по меньшей мере 115 арестах, преследованиях и/или обвинениях в России в течение 30 месяцев с апреля 2013 года по октябрь 2015 года.
Мы собрали одиннадцать историй российских СМИ о женщинах, обвиняемых по статье 122.
Начиная с 2007 года, по меньшей мере трое из этих женщин были приговорены к более, чем четырем годам в тюрьме предположительно за заражение ВИЧ одного или более партнеров. Еще одна женщина получила oдин год семь месяцев тюрьмы, еще две женщины – условный срок продолжительностью один год и три года. В одном случае суд приговорил 20-летнюю женщину к 6-месячному условному сроку. Вердикты по трем случаям не известны.
Преследуется не только предположительное заражение ВИЧ; мы также знаем о деле 2013 года против женщины из города Кунгур в Пермской области, которую приговорили к одному году трем месяца в исправительной колонии за потенциальное или предположительное поставление в опасность заражения ВИЧ: ее партнер не заразился.
Особую обеспокоенность в этих рейсах вызывают доказательства, что обвиняемые знали о своем ВИЧ-позитивном статусе, были основаны на  медицинских историях. В России каждый вновь диагностированный человек должен подписать информированное согласие, где указано, что он или она проинформированы о возможной уголовной ответственности по статье 122 за постановку в угрозу заражения и заражение ВИЧ. Это информированное согласие хранится вместе с медицинской историей пациента, готовое для официального запроса.
Более того, в случаях предположительной передачи ВИЧ, прокурор не исследовал адекватно причинно-следственную связь между подозреваемым и потерпевшим, потому что не существует теста, который может установить время и направление передачи без всякого сомнения. Например, возможно, что некоторые потерпевшие мужчины были заражены ВИЧ до того, как у они вступили в отношения с их партнерами-женщинами, и перед тем, как они сами получили ВИЧ-позитивный диагноз
Статья 122 была введена в Уголовный Кодекс, в частности, чтобы защитить женщин от ВИЧ-инфекции, но из нашего исследования станосится ясно, что в России этот закон применяется против женщин.
Существует много причин, почему женщины более уязвимы, когда криминализация ВИЧ пересекается с гендерным неравенством и насилием. Это касается, но не ограничивается, следующим:
  • Женщины часто не принимают решения о том, когда и с кем заниматься сексом, использовать презервативы или нет.
  • Женщины часто зависимы экономически от своего партнера, что усиливает неравенство в их отношениях.
  • К сожалению, есть данные, что насилие со стороны интимного партнера часто следует за тем, когда женщина раскрывает свой ВИЧ-статус.
  • Страх уголовного преследования мешает женщинам тестироваться, знать свой статус и получать лечение ВИЧ, потому что многие законы применяются исключительно против тех, кто знает о своем диагнозе.
Мы надеемся, что если пролить свет на то, что происходит в России, это поможет мобилизации людей против этого несправедливого преследования. Так как появляются новые кейсы, мы продолжим информировать о них на сайте Сети “Правосудие и ВИЧ”.

AIDS 2016: Intersectional approaches linking issues across areas of criminalisation have been key themes of AIDS 2016

Susana T. Fried – 22 July 2016

In a moment of global attacks on civil society, an intersectional approach linking issues across HIV, sexuality, adult consensual sex and bodily integrity is critical.  Now, more than ever.

Every international AIDS conference seems to have a theme or two that picks up energy as it goes. For me, at the World AIDS Conference 2016 underway in Durban, this was the growing discussion about disastrous impact of criminal law.  Of course, this isn’t a new issue – not at an international AIDS conference, nor in advocacy more generally. The 2012 Global Commission on HIV and the Law explored this in depth. However, at this AIDS conference there was a renewed energy behind it.  In addition, there were a number of conversations that added a new twist, linking criminalisation of same sex conduct, sex work and HIV criminalisation to criminalisation of abortion.

For someone who stands with one leg in the women’s movement and another in the HIV movement, this was a welcome and long overdue conversation. We know the ways in which abusive laws and practices put sex workers, gay and other men who have sex with men, transgender women (there is still a dearth of data on HIV and transmen or lesbians and other women who have sex with women) and other marginalised groups at increased risk of contracting HIV and create serious and unmanageable barriers to accessing services and justice. We also know the ways in which governments use criminal laws not just to contain and regulate the lives of individuals, but they also use it to circumscribe the work of civil society organisations working on these issues.

Laws that criminalise adult consensual sex, non-heteronormative behavior and gender transgression are used to control (often in the name of “protection”), penalise and, as a result, stigmatise a range of sexual practices and sexual and gender identities that put health and rights at risk.  Many of the groups who are on the receiving end of such punitive laws and practices are among those most at risk of contracting HIV.  This conversation, despite massive evidence, still doesn’t always inform legislation and public policy.  This is, in a sense, “old hat” to social movements across the board.

However, what was new to the conversation at this year’s International AIDS Conference (AIDS2016) in a visible way and in a public conversation was the introduction of criminalisation of abortion to the list of forms of criminalisation that intersect with HIV risk and vulnerability.  At one panel, Lucinda O’Hanlon from the UN human rights office drew out some of the parallels between criminalisation of abortion and other forms of criminalisation, stating “Restrictive legal regimes on abortions, including criminalisation, do not reduce abortion rates but rather makes them unsafe. These restrictions are rooted in societal norms that deny women’s agency and capacity to make decisions about their own lives.”  In many countries, women who undergo abortions are stigmatised as improper women, much like sex workers who, as Ruth Morgan Thomas noted “Criminalisation of sex work sends the message that sex workers are not seen as fit and worthy to enjoy rights.”

However, the linkages can be more direct.  For example, transmen who have sex with other men and become pregnant may find it impossible to find safe and non-judgmental sexual and reproductive health care, let alone abortion services.  Sex workers, too, may find their access to abortion services restricted because of the ripple effect of laws criminalising sex work.  With abortion, as with other groups whose identities and practices are penalised, other factors of marginalisation matter.  In the case of abortion, it is women with fewer resources who are at greatest risk of facing punishment for their choice.  The same could be said for those who get penalised for living with HIV.  For example, a young woman who has been coerced into having sex and fears that the man she had sex with might be living with HIV, will find it difficult in many countries, to have an abortion. In some countries, if she is under the age of consent for services, she will have to get parental consent just to be able to see a sexual and reproductive health practitioner. A limited number of countries ban abortions under any circumstances, even, in some cases, as a principle of their country’s constitution (Ecuador, for instance).  Most countries allow abortion under some circumstances, but access the services requires money, information and the ability to travel.  Such resource requirements have a particularly severe impact on young women, poor women, and women in marginalised groups.  Failing to learn lessons from HIV, women, adolescents and girls in countries affected by Zika face similar barriers to services and justice.

In a cross-issue conversation, Edwin Bernard from the HIV Justice Network also noted a “shift towards intersectionality in our efforts to end the punitive and abusive laws against various populations,” including women who seek or undergo abortions. In this context, these conversations stand as a clarion call for a new or renewed effort to link forces to challenge the growing reliance on punitive laws and practices, including those about abortion, by governments to control those who step outside of social norms around gender and sexuality.

Originally published in Crosstalk

AIDS 2016: A workshop at the 21st International Aids Conference highlights the need for collaboration across key populations to defeat unjust criminal laws

21 JULY 2016

On 19 July, a workshop was hosted at the 21st International AIDS Conference, being held in Durban, South Africa. Entitled “Common at its core: understanding the linkages for challenging the impact of criminal law across population groups,” the workshop highlighted the common root causes of the misuse of criminal law against people living with HIV, sex workers and lesbian, gay, bisexual, transgender and intersex people, as well as in the context of abortion.

The discussions noted that unjust criminal laws against those populations are due to prejudice, gender inequality and discrimination. The participants stressed that punitive laws against key populations lead to serious human rights violations, exacerbate vulnerabilities to HIV and other health issues and affect efforts to end AIDS.

To address unjust laws, the participants called for building synergies among populations affected by them. This will allow experience-sharing on successful approaches in addressing criminalization and will enable the development of joint strategies. Examples of collaborations between communities to address their common health and human rights challenges were highlighted.

The discussions were concluded with a call for more collaboration in addressing the criminal law and its impact on specific populations, including in the context of HIV. This should build on efforts to expand strategic litigation and the engagement of lawmakers, the police and the judiciary to end injustice and advance health for all.

The event was organized by UNAIDS, the Office of the United Nations High Commissioner for Human Rights, Amnesty International and the Global Health Justice Partnership at Yale University.

QUOTES

“CRIMINALIZATION OF SEX WORK SENDS THE MESSAGE THAT SEX WORKERS ARE NOT SEEN AS FIT AND WORTHY TO ENJOY RIGHTS. SEX WORKERS EXPERIENCE SERIOUS FORMS OF VIOLENCE AND ABUSE, OFTEN COMMITTED BY POLICE AND LAW ENFORCEMENT AGENTS. THESE ABUSIVE LAWS AND PRACTICES VIOLATE HUMAN RIGHTS OBLIGATIONS.”

RUTH MORGAN THOMAS NETWORK OF SEX WORK PROJECTS

“RESTRICTIVE LEGAL REGIMES ON ABORTIONS, INCLUDING CRIMINALIZATION, DO NOT REDUCE ABORTION RATES BUT RATHER MAKE THEM UNSAFE. THESE RESTRICTIONS ARE ROOTED IN SOCIETAL NORMS THAT DENY WOMEN’S AGENCY AND CAPACITY TO MAKE DECISIONS ABOUT THEIR OWN LIVES.”

LUCINDA O’HANLON ADVISER ON WOMEN’S RIGHTS, OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS

“AT ITS CORE, CRIMINALIZATION OF SPECIFIC POPULATIONS, INCLUDING LESBIAN, GAY, BISEXUAL AND TRANSGENDER PEOPLE, IS BASED ON PREJUDICE, FEAR AND STIGMA. CRIMINAL LAWS AGAINST OUR POPULATIONS ARE AMBIGUOUS, UNJUST AND USED MAINLY AS POLITICAL AND SOCIAL TOOLS TO ENFORCE HETERONORMATIVE AND PATRIARCHAL NORMS. WE MUST JOIN HAND AND BUILD SYNERGIES AMONG OUR COMMUNITIES AND SOLIDARITY WITH OTHER SOCIAL JUSTICE MOVEMENTS TO CHALLENGE THESE LAWS.”

KENE ESOM EXECUTIVE DIRECTOR, AFRICAN MEN FOR SEXUAL HEALTH AND RIGHTS

“THE BREAKTHROUGH AT THIS CONFERENCE IS THE SHIFT TOWARDS INTERSECTIONALITY IN OUR EFFORTS TO END THE PUNITIVE AND ABUSIVE LAWS AGAINST VARIOUS POPULATIONS. THIS EMERGING MOVEMENT SHOULD BE SUPPORTED AND STRENGTHENED AS CRITICAL TO ADVANCING EFFECTIVE RESPONSES FOR DIGNITY, HEALTH AND JUSTICE FOR KEY POPULATIONS.”

EDWIN BERNARD  GLOBAL COORDINATOR, HIV JUSTICE NETWORK

Originally published on UNAIDS website

AIDS 2016: Criminal laws need to be reformed for the sake of populations most vulnerable to HIV

Durban – The war on HIV and Aids could be stymied by the unequal application of criminal laws.

This was the consensus of a group of researchers at a session at the International Aids Conference titled “Beyond blame: A feminist dialogue on criminalisation of HIV transmission, exposure and non-disclosure”, which looked at misapplication of the laws of certain countries and their impact on the epidemic.

“The law is a critical tool for creating an enabling environment for effective responses to HIV and to provide access to justice for those affected by HIV. While some have argued in favour of laws criminalising HIV exposure, transmission or non-disclosure as protective of women, they in fact leave them more vulnerable to persecution and increased violence,” said organisers in their introduction.

Marama Pala, a New Zealand activist who was infected 24 years ago, said when the trial against the man who had infected her began, she was painted as the victim. And because she was seen as “criminalising” the spread of HIV, she was ostracised by those living with the virus.

“I was only 22. I didn’t have an education. People would look at me and say: ‘Poor girl’. Everyone called me a victim. But I’m not.”

She said that experience, and many more, had convinced her that this approach did not work and instead became another way to abuse human rights.

“As an indigenous woman (she is Maori) I know how people of colour are always the ones to be disproportionately affected by laws like this one.”

Members of the LGBTI community and prostitutes were also targeted. This point was raised by Jules Kim, a prostitute at Scarlet Alliance, an Australian association, who said that a trans-woman prostitute was now facing charges and was being held in a men’s maximum security prison.

“No white men have been arrested under these laws, unless they are sex workers. Even if a person has been on ARVs for years (meaning that their viral load has been suppressed and they cannot pass on the virus), they are still arrested and face criminal charges.”

She said everyone had a responsibility to protect their sexual health.

Ruth Morgan Thomas, global co-ordinator of the Global Network of Sex Work Projects, said these laws were based on “family values”.

“The custodians of the law – the police – are the ones who are sometimes perpetrators of the violence. If you report a rape, they tell you that that can’t be possible, because you’re a whore.”

Men who had sex with men also bore the brunt of those laws.

Originally published on iol

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:

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.

Canada: Canada's HIV disclosure laws are dangerous for women says B.C. Civil Liberties Association

HIV disclosure laws endanger women says B.C. Civil Liberties Association

Fear of legal repercussions keeps HIV-positive women from reporting sexual abuse, says Michael Vonn

Canada’s HIV disclosure laws are dangerous for women, especially those in abusive relationships or who have been sexually assaulted, says a lawyer with the B.C. Civil Liberties Association.

Michael Vonn, the civil rights group’s policy director, says a lack of awareness of the law can lead people — mostly women, but not exclusively — to disclose their HIV positive status in situations where that information can be used against them.

“Women who are HIV positive, if they are in abusive relationships, are often essentially ‘disciplined’ with the threat of [revealing their status],” Vonn told Early Edition host Rick Cluff.

“If you don’t do what I say, or you try to leave me, I’m going to go to the police and I’m going to say you didn’t disclose,” she said. “It’s emotional blackmail.”

Vonn said similar logic can often discourage HIV-positive women from reporting incidents of sexual assault.

“[They are often] too afraid to go to the police to report that crime because of concerns it will somehow boomerang back on them,” she said.

This fear of criminal liability for failure to disclose is compounded, Vonn said, by the fact that Canada is one of the most aggressive prosecutors of HIV nondisclosure in the world on a per capita basis.

Law not well known

In 1998, a landmark Supreme Court of Canada decision made it a crime to not disclose a positive HIV diagnosis to a sexual partner. Someone with such a diagnosis can be charged with aggravated assault for failing to disclose it, even if the virus is not transmitted.

A 2012 ruling clarified that disclosure is not required if the “realistic possibility of transmission of HIV is negated” — specifically, if the HIV-carrying partner has a low viral load and a condom is used during sexual intercourse.

Vonn says that ruling can compel an HIV-positive partner to disclose even when an abusive partner could use that information against them.

It can also strengthen an abusive partner’s blackmail efforts by allowing them to lie and say one of those conditions was not being met.

“Treatment options [can] make you virtually unable to infect somebody, because your virus will be so successfully suppressed,” Vonn said. “Who exactly tells you that that good news story medically is not the good news story legally?”

Medical professionals often don’t feel comfortable giving legal advice to their newly low-viral-count patients, said Vonn, which makes them less aware of their obligations.

Change not likely in short term

Vonn said she does not have any particular hope that the law will change any time soon, especially since the relevant Supreme Court rulings are so recent. In lieu of legal change, Vonn emphasizes education and prosecutorial discretion.

“[We want the Crown to] really think about the public interest in terms of making such prosecutions,” she said.

As for the education component, Vonn urged HIV-positive Canadians to familiarize themselves with disclosure law as it pertains to them. To that end, SFU is holding a free information session on Wednesday, March 30, at which Vonn will be a panelist.

“Understand the law,” Vonn said. “If this is news to you, there are resources that are available.”

Originally published in CBC News

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.