Canada: Study finds HIV criminalisation creates uncertainty, fear, and vulnerability

Last week’s devastating ruling of the Supreme Court of Canada was quick to dismiss evidence that that HIV criminalisation was damaging to public health.

“The only ‘evidence’ was studies presented by interveners suggesting that criminalization ‘probably’ acts as a deterrent to HIV testing,” wrote Chief Justice McLachlin. “The conclusions in these studies are tentative and the studies were not placed in evidence and not tested by cross-examination. They fail to provide an adequate basis to justify judicial reversal of the accepted place of the criminal law in this domain.”

And yet a few weeks earlier, a Canadian study was published that highlights exactly how the criminalisation of HIV non-disclosure is damaging public health. It may not be possible to prove that it deters testing, but it certainly creates all kinds of problems for people living with, and at risk of, HIV.

The lead author of the study, How criminalization is affecting people living with HIV in Ontario is Professor Barry D. Adam, University Professor of Sociology at the University of Windsor, Ontario, and Senior Scientist and Director of Prevention Research at the Ontario HIV Treatment Network, Canada.

Download the report here

Drawing on results from the Ontario HIV Treatment Network Cohort Study, the Positive Places Healthy Places Cohort Study, and in-depth interviews with 122 HIV-positive people, the report examines how people living with HIV in Ontario perceive the law and the legal obligation to disclose their HIV-positive status to prospective sexual partners, as well as their perceptions of the changing public climate affected by the increasing prominence of criminal discourses applied to HIV.

The report shows how the criminal justice system and media coverage have created a climate of anxiety (though not all feel equally affected), affected views on when disclosure is (and is not) necessary, shaped messages from health professionals, and affected disclosure practices. The legal and media framing of HIV as a responsibility to disclose potentially undermines HIV prevention messaging and places ever greater numbers of people living with HIV in jeopardy.

Most study participants believed that disclosure of HIV-positive status should not be a legal requirement if protected sex is practiced. There was no significant variation in opinion by age, gender, sexual orientation, or ethnicity, but more educated respondents showed less punitive views.

The study’s primary finding is that that HIV criminalisation has unfairly shifted the burden of proof so that people living with HIV are held to be guilty until proven innocent and that:

People with HIV are now caught in a difficult he-said/(s)he-said situation of having to justify their actions;
disgruntled partners now have a legal weapon to wield against them regardless of the facts; and
the onus now falls on women whose male partners could ignore their wishes regarding safer sex.

In terms of general impact, many respondents reported a heightened sense of uncertainty, fear, or vulnerability, but others felt that the climate of acceptance is still better than in the early days of the epidemic, or that the prosecution of the high profile cases is justified and these people are giving all people with HIV a bad name.

To set the scene, in its introduction the report provides an extremely well-written exposition of why criminalisation HIV non-disclosure is problematic from a human rights, as well as a public health perspective. An edited version, below, provides you with a flavour of the insights.

The relationship between disclosure and HIV risk is complex at best… While some studies have found an association between disclosure and condom use, more have found no relationship…Disclosure poses a range of challenges in everyday social situations. The demand to disclose essentially requires HIV-positive people to place themselves in a situation to be rejected or stigmatized, a situation exacerbated in a climate of rising prosecution and media attention…

Ultimately reliance on disclosure makes sense as an HIV prevention measure only if both partners are certain of their serostatus, though epidemiologists point out that significant percentages of people who are HIV-positive do not know they are. In Canada, an estimated 26 percent of people infected with HIV are unaware of this fact. Indeed some researchers contend that transmission by those unaware of their infection accounts for a significant portion of new infections. Criminal prosecutions for non-disclosure encourage at-risk persons to rely on prospective sex partners to disclose their HIV status, if positive, and to assume that there is no or minimal risk in the absence of positive serostatus disclosure, evident in complainants’ testimony at trial in such cases. Serostatus disclosure laws may thus foster a false sense of security among HIV-negative persons who may default to forgoing safer sex unless notified of their partners’ HIV-positive status. Reliance on disclosure, then, is a shaky foundation for HIV avoidance. By absolving people of responsibility for practising safer sex, it may even increase vulnerability to infection.

Disclosure, then, is often challenging to accomplish in everyday life and the research evidence shows that disclosure is far from reliable as a method of avoiding HIV. The accumulation and consolidation of a body of legal doctrine that rests primarily on an obligation to disclose by those who know they are HIV-positive raises a number of problems in the pursuit of effective public policy in HIV prevention. There is, then, a need to test the presuppositions underlying the legal obligation to disclose as an HIV prevention strategy and to examine the real effects of criminalizing non-disclosure on people living with HIV.

Towards the end of the report, the authors discuss the impact of criminalisation of HIV non-disclosure on public health. Again an edited version, below, provides you with a flavour of the insights.

In Canada in recent years, the state has been shifting resources from social services to law enforcement… In HIV, the prosecutorial arm of the state has expanded while support for ASOs and for HIV prevention has become increasingly tenuous. The move on the part of some attorneys general to press for more punitive solutions to HIV prevention has many pitfalls and unintended consequences that amount, in the long run, to a public policy with poor prospects for meaningful reduction in HIV transmission combined with real damage to the lives and well-being of [people living with HIV]. Indeed obsessive focus on disclosure may create the conditions of accelerated transmission if people abandon safe sex in favour of disclosure as the preferred method of HIV avoidance…

Criminalization, whether minimal or expansive in punitive scope, has little potential to slow the advance of the HIV epidemic and has considerable potential to undermine prevention efforts currently under way….At the same time, increasing reliance on the criminal justice system to enforce a principle of universal disclosure of HIV-positive status, regardless of the likelihood of transmission, presses [people living with HIV] into an untenable double bind: they must place themselves into the risky position of heightening the possibility of rejection, stigmatization, and prosecution. Double binds can scarcely be the foundation for realistic public policy or consistent practice among [people living with HIV]. Only decriminalization and destigmatization would begin to create the conditions to make disclosure of sero-status safe. But perhaps more importantly, disclosure has been shown to be an unreliable method of reducing HIV transmission. Obscured by the criminalization debates is the fact that protected sex, especially in a situation where treatment has succeeded in attaining an undetectable viral load in the HIV-positive partner, continues to be a much more reliable method of avoiding HIV (as well as several other sexually transmitted infections).

It is interesting to note that the Supreme Court has, at least, recognised this last observation. However, the reality of the ruling is that it states very clearly that disclosure alone is enough to negate criminal liability (notwithstanding difficulties of proving that this occurred). It also very worringly undermines safer sex messaging by stating that condoms alone (or low viral load alone) are not ‘safe’ enough.

The study concludes with the following recommendations:

Among police and prosecutors to employ consistent evidence-informed principles in the laying of charges (i.e. by developing prosecutorial and police guidelines)
Among journalists to employ a rigorous decision-making matrix that strictly minimizes the publication of the identity of people living with HIV, and
In public health and AIDS service organisations to develop a consistent counseling policy that does not mistake universal disclosure for prevention but rather focuses on how best to engage the sexual cultures of at risk populations to advance safer sex practice.

Sweden: Majority of MPs want to reform HIV disclosure obligation and ‘HIV exposure’ criminal liability

Two articles commemorating 30 years of HIV in Sweden in Svenska Dagbladet by journalist Tobias Brandel suggest that public – and political – opinion is being positively impacted by a two-year campaign by RFSU (the Swedish Association for Sexuality Education), HIV-Sweden, and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) to raise awareness and advocate against overly-broad HIV criminalisation.

The first article, with the headline, ‘HIV-positive convicted harsher in Sweden‘ focuses on the fact that although HIV has been transformed from a fatal to a chronic disease, more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and ’90s combined.

The second, with the headline, ‘HIV-law divides Government’ highlights the fact that a majority of MPs want to revise both the Communicable Diseases Act (with its ‘information obligation’) and the criminal law that currently allows prosecutions for people with HIV for potential or perceived HIV exposure as well as transmission. However, there are divisions within both the coalition Government and the leading opposition parties.

Since these articles are the most up to date descriptions of the current moves towards law and policy reform in Sweden, I am including (in English via Google translate, with slight amendments for clarity) the full text of both articles below.

This is the Google-translated version, read the original article here

When Joakim Berlin received his diagnosis, HIV was a death sentence.

“The big question my relatives asked was when I was going to die. Of course, I thought it would go pretty quickly,” he says.

It was 1991, five years before the arrival of antiretroviral drugs. Today he leads a “totally normal” life.

“Sometimes I get side effects such as cramps and fatigue. But HIV’s biggest impact has been on my social life. Human ignorance is problematic. The fear is still there.” Neither legislation nor case law has followed the progress of medicine. Although HIV has been transformed from a fatal to a chronic disease more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and ’90s combined. Anyone who has HIV – and knows it – and has unprotected sex with another person is at risk of prosecution for ‘aggravated assault’, ‘attempted aggravated assault’ or ‘creating danger’.

The last year has seen four such convictions in Sweden, according to a review by Svenska Dagbladet. All have resulted in prison sentences – even though they were not convicted of infecting their sexual partners. Only in one case was found to be HIV-positive plaintiff, but failed to clarify whether it was the offender who infected him.

A total of 44 people have convicted of crimes related to HIV since the late 1980s. This makes Sweden one of the countries in the world with the largest number of prosecutions in relation to the number of HIV-positive people, according to the Global Criminalisation Scan.

Sweden was also singled out as a bad example of how the law is used against people with HIV at the International AIDS Conference in Washington last summer. Even UNAIDS, the UN organisation for HIV / AIDS, criticises Sweden.

Ake Örtqvist, an infectious disease physician for Stockholm County Council, is critical of the Swedish court’s reasoning over risk and intent.

“The courts judge very differently which is very unfortunate. Courts and prosecutors should have an increased knowledge about the disease and the concept of risk,” he says.

Last year Denmark abolished a law that criminalises people with HIV referencing the current effective HIV drugs.

“The impact that treatment has in lowering viral load and infectiousness is very real, even if it is scientifically always hard to say zero. I think the courts reasoning is odd and they should embrace the fact that infection risk today is extremely small. One must ask whether it is reasonable to judge according to the Penal Code when the infection is well controlled and transmission has not occurred,” said Jan Albert, Professor of Infectious Disease at the Karolinska Institute. In other words, the virus is spread very rarely by “HIV-men” as the condemned is usually called in the media. The real vectors are people who do not know they have HIV and therefore do not receive treatment.

According to the Communicable Diseases Act HIV-positive individuals must inform their sex partners of their status before having sex. Although it is not possible to judge according to the Infectious Diseases Act so courts often refer to information obligations.

Both RFSL and RFSU argue that the law is actually counter-productive.

“Of course you should tell if you have HIV before sex, but you should not risk punishment if you fail to do so. Criminalisation can also lead to a false sense of security, to believe that the person who is not saying anything does not have HIV,” says RFSU President Kristina Ljungros.

She also believes that the prosecutions may deter people from testing. Even the UN-backed Global Commission on HIV and the Law concludes in a new report that criminalisation contributes to fewer people knowing their HIV status.

Preliminary data from a new U.S. study, received by Svenska Dagbladet, supports these ideas. The Sero Project, in collaboration with Eastern Michigan University interviewed more than 2000 HIV-positive individuals in the United States. Half of the respondents believe that it is reasonable to avoid HIV testing for fear of prosecution, and one in four say they know one or more individuals who chose not to test for fear of being prosecuted.

Joakim Berlin has lived with the virus for over 20 years and works at Positive Group West [part of HIV Sweden] as well as being a member of RFSL’s board.

“It is the responsibility of both parties to protect themselves, so you cannot have laws that criminalise only one party,” he said.

Is it not reasonable to tell your sexual partner so that he can make an informed decision?

“I have the responsibility to ensure that you do not get HIV, and you have the responsibility to ensure that you are not putting yourself at risk,” he says. “The law places full responsibility on the HIV-positive person while everyone else thinks that they can do whatever they want without consequences. Most people get HIV from someone who does not know their HIV-positive status.”

This is the Google-translated version, view the original here

Legislation and case law surrounding HIV has not kept pace with developments in medicine, as Svenska Dagbladet showed yesterday. Although modern HIV treatment reduces infectiousness dramatically, the law is the same as in the 1980s. There is now a majority in parliament who want a review of the Communicable Diseases Act, which forces people with HIV to disclose their status before having sex.

“We think that the issue should be revisited. Our knowledge about HIV is changing rapidly. We can not have laws that are outdated,” says Barbro Westerholm, Liberal Party social policy spokesperson.

As previously reported to Svenska Dagbladet both infectious disease doctors and scientists are critical of Swedish courts that sentence HIV-positive people to prison for unprotected sex, despite there being no alleged transmission. As well as revisiting the Communicable Diseases Act, the Liberal Party would like there to be a review of judicial practice.

The position of the Moderate Party is that there is no need for such a review, but the Party is now in discussion.

“We have not changed our minds, but we’re talking about it. It is clear that we must keep up with new facts and analyses. There is a debate,” says Mats Gerdau, a member of the social committee [which would recommend such a review to the Government].

The Centre Party is open to an amendment of the Penal Code in respect of how the courts reason about intentional and negligent [states of mind] – but they are clearly against removing the Communicable Diseases Act’s notification requirement.

“There is an information obligation for all diseases that are generally hazardous. It is completely illogical to say that it should be removed only for HIV,” says Anders W Jonsson, chairman of the social committee.

The Christian Democrats see no need for any kind of review. All four Alliance parties must agree before the law can be reviewed. The [opposition] Social Democrats, The Green Party and the Left are all clear that they want the information requirements to be removed for HIV.

“The law is counterproductive. It places responsibility solely on the person with HIV. It is a repressive law which, at worst, means people do not get tested,” says Eva Olofsson (Left), also a member of the social committee.

Agneta Luttropp (Greens), another member of the social committee, believes that the law creates a false sense of security.

“The responsibility to protect is on both sides, on both the person who may have HIV and the person who does not. We hope and believe that a change in the law could lead to people being more invested in having protected sex,” she says.

However, the Social Democrats want to keep the information obligation and do not believe that judicial practice needs to be reviewed.

U.S. Positive Women's Network devastated by murder of HIV-positive woman in Dallas

The U.S. Positive Women’s Network (PWN), a national membership body of women living with HIV, is devastated to hear the tragic news that a young woman living with HIV in Dallas, Texas, was murdered for disclosing her HIV status to a partner. PWN calls for immediate action to eliminate HIV stigma and violence against women living with HIV.

How to Fight HIV Criminalization in Courts of Law and Public Opinion | AIDS Ark

As the XIX International AIDS Conference (AIDS 2012) in Washington, DC, presented hopes of achieving an AIDS-free generation, some advocates focused attention on a major obstacle to this goal: the criminalization of people living with or at high risk for HIV.

US: Former professional footballer Trevis Smith loses high school coaching job after his Canadian HIV non-disclosure conviction comes to light

The Birmingham News reports former CFL player Trevis Smith was let go after a reporter asked the school about his criminal record. There is a report that a Birmingham, Ala. high school has let go former CFL player Trevis Smith after learning about his conviction for aggravated sexual assault in Canada in 2007.

University of Michigan News Service | Michigan courts use HIV disclosure laws to punish poor, marginalized individuals

ANN ARBOR, Mich.-Michigan’s felony HIV disclosure law is a tool to control and punish marginalized and poor individuals in criminal court cases, according to new University of Michigan findings. In many states, a person with HIV can be charged with a crime if he or she engages in sexual activity without telling the other person.

HIV Criminalisation Survivors Speak Out: Human Rights Networking Zone Panel (AIDS 2012)

Panel session in the Human Rights Networking Zone at AIDS 2012 (25 July 2012)

Organizer: HIV Justice Network

Presenters:

– Edwin J Bernard, Co-ordinator, HIV Justice Network, United Kingdom
– Louis Gay, Deputy Chair, Patient Network for HIV, Norway [from 02:28]
– Robert Suttle, Assistant Director, The Sero Project, USA [from 10:19]
– Marama Pala, Executive Director, INA – Maori, Indigenous and Pacific Island HIV/AIDS Foundation, New Zealand [from 21:00]

Video produced by Nicholas Feustel, georgetown media,
for the Canadian HIV/AIDS Legal Network

Press Conference (AIDS 2012)

HIV Criminalization – An Epidemic Of Ignorance?

Laws and prosecutions that single out people with living with HIV are ineffective, counterproductive and unjust.

As delegates from around the world met in Washington DC at AIDS 2012 to discuss how to “end AIDS” through the application of the latest scientific advances, this press conference highlighted how laws and policies based on stigma and ignorance are not only creating major barriers to prevention, testing, care and treatment, but also seriously violating the human rights of people living with HIV.

Hosted by (in alphabetical order): The Center for HIV Law & Policy / Positive Justice Project, United States; Global Network of People Living with HIV (GNP+), Netherlands; HIV Justice Network, United Kingdom/Germany; INA (Maori, Indigenous & South Pacific) HIV/AIDS Foundation, New Zealand; The SERO Project, United States; Terrence Higgins Trust, United Kingdom; UNAIDS, Switzerland.

Chaired by Paul de Lay, Deputy Executive Director, UNAIDS, Switzerland

Speakers:

– Nick Rhoades, HIV criminalization survivor, United States [from 03:28]
– Marama Pala, former complainant, New Zealand [from 09:15]
– Edwin J Bernard, Co-ordinator, HIV Justice Network/Consultant, GNP+ [from 14:35]
– Laurel Sprague, Research Director – SERO, United States [from 23:15]
– Lisa Fager Bediako, Congressional Black Caucus Foundation/ Positive Justice Project, United States [from 33:10]

Video produced by Nicholas Feustel, georgetownmedia.de, for the HIV Justice Network

HIV Criminalisation Discourages HIV Testing, Creates Disabling and Uncertain Legal Environment for People with HIV in U.S. (Press Release)

The SERO Project: National Criminalization Survey

Washington, D.C. July 25, 2012

Preliminary data from the Sero Project’s ground-breaking survey of more than two thousand people living with HIV (PLHIV) in the U.S., released July 25, 2012, at the International AIDS Conference in Washington, D.C., reveals HIV criminalization is a significant deterrent to testing, accessing care and treatment for HIV:

• One quarter of respondents (25.1%) indicated they knew one or more people who told them they did not want to get tested for HIV because of fear of prosecution if they tested positive; more than 5% indicated that “many people” have told them this.

• Almost half of respondents (49.6%) felt it could be reasonable for someone to avoid testing for HIV, and 41.6% felt it could be reasonable to avoid HIV treatment for fear of prosecution.

“We expected the survey to show criminalization is a deterrent to HIV testing, but these findings indicate it is an even bigger obstacle than previously believed,” said Laurel Sprague, the project’s principal investigator who is also Sero’s Research Director. “The community’s response has been tremendous; it is obvious there is tremendous concern about HIV criminalization. I look forward to further analysis of the survey responses, including of those who are HIV negative or do not know their HIV status, which will be released in a report later this year.”

Sean Strub, Sero’s executive director and the founder of POZ Magazine, said “This is a wake-up call for public health officials and policymakers who have failed to recognize the extent to which HIV criminalization hampers efforts to combat AIDS. We’ve known for years that HIV criminal statutes do not achieve their intended purpose, to reduce HIV transmission. Now it is clear that these statutes are driving the epidemic, because of how they fuel stigma and discourage HIV testing and accessing the treatment that reduces transmission.”

Strub and Sprague are both long‐term HIV survivors and advocates who have championed self‐empowerment for people with HIV to combat stigma and improve health outcomes for themselves and their communities. The 2,076 people living with HIV in the United States who responded to the Sero survey also painted a disturbing picture of a disabling legal environment for people with HIV:

• More than a third (38.4%) reported they worried a few times or frequently about being falsely accused of not disclosing their HIV positive status; amongst transgendered persons that cigure rose to 60%.

• Respondents in the Midwest (45.9%) and South (40.9%) were more likely to express fear about false accusations than those in the West (35.1%) and Northeast (32.3%).

• Just less than two‐thirds (62.7%) of respondents were not certain whether or not their state required people with HIV to disclose their status to a partner before having sex, with the uncertainty highest in the Northeast (72.4%) and West (71.3%) and South (61.6%) and lowest in the Midwest (40.4%).

• There were significant regional differences amongst those reporting that they were informed about potential criminal liability at the time of their diagnosis. The highest rate was in the Midwest (28.8%) and South (14.8%) and lower rates were seen in the West (7.5%) and Northeast (4.1%).

• Respondents also indicated a lack of clarity about what could subject them to prosecution (47.7% “not clear”, 30% “somewhat clear” and 22.3% “completely clear”). Men reported a greater lack of clarity on this point.

The top reasons cited for disclosure were that it is “the right thing to do”, “to have honest relationships” and “not cause harm to another” or “to protect their partner”, not that it was required by law or because of fear of criminal prosecution. More than 8 in 10 PLHIV in the study said that they believe that sexual partners share equally in the responsibility for HIV prevention.

The detailed survey, which required 20 to 25 minutes to complete, was conducted online in June and July of 2012, and is the first in‐depth examination of the effect of HIV criminalization on people with HIV and one of the largest surveys of people in the U.S. with HIV ever conducted. Further results and analysis will be released later in the year.

The Sero Project is a not‐for‐profit human rights organization combating HIV‐related stigma by working to end inappropriate criminal prosecutions of people with HIV for non‐disclosure of their HIV status, potential or perceived HIV exposure or HIV transmission.

The Sero Project is supported by the Elton John AIDS Foundation, Broadway Cares/Equity Fights AIDS and the H. van Ameringen Foundation as well as many individual supporters. Special thanks to POZ Magazine, the North American regional affiliate of the Global Network of People Living with HIV/AIDS, the Positive Women’s Network, The Body and other community resources that assisted in survey promotion.

Special thanks also to Thom Riehle, Ian Anderson, Edwin Bernard, Regan Hofmann, Cecilia Chung, Julie Davids, Mark S. King and Alex Garner for their expertise and support.

Download the press release here. More detailed preliminary data can be downloaded here.

Global Commission on HIV and the Law: an analysis of their HIV criminalisation recommendations

Today, the Global Commission on HIV and the Law finally issued its long-awaited report, ‘HIV and the Law: Risks, Rights and Health.’ It was well worth the wait.

“Fundamentally unjust, morally harmful, and virtually impossible to enforce with any semblance of fairness, such laws impose regimes of surveillance and punishment on sexually active people living with HIV, not only in their intimate relations and reproductive and maternal lives, but also in their attempts to earn a living.”

That’s how the Chapter 2 of the report, focusing on the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission begins. The rest of the chapter pulls no punches either.

Of course, the Global Commmission, and the report itself, cover much more than HIV criminalisation, and it pulls no punches recommending repeal of punitive laws impacting consensual same-sex sex, sex work, drug use and patent laws affecting access to HIV treatment. However, since this blog – and the focus of my work – is specifically about HIV criminalisation I’m only going to focus on the six pages in the report (and five pages of references) that specifically addresses this issue.

Five recommendations on HIV criminalisation: click on image to enlarge

To cut to the chase, the report recommends the following:

To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:

2.1. Countries must not enact laws that explicitly criminalise HIV transmission, HIV exposure or failure to disclose HIV status. Where such laws exist, they are counterproductive and must be repealed. The provisions of model codes that have been advanced to support the enactment of such laws should be withdrawn and amended to conform to these recommendations.
2.2. Law enforcement authorities must not prosecute people in cases of HIV non-disclosure or exposure where no intentional or malicious HIV transmission has been proven to take place. Invoking criminal laws in cases of adult private consensual sexual activity is disproportionate and counterproductive to enhancing public health.
2.3. Countries must amend or repeal any law that explicitly or effectively criminalises vertical transmission of HIV. While the process of review and repeal is under way, governments must place moratoria on enforcement of any such laws.
2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.
2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.

The first four points are consistent with the 2008 UNAIDS/UNDP Policy Brief recommendations but go further in terms of tone. For example, using “must” rather than “should”.

Point 2.3 on vertical transmission really needs no further explanation and should be implemented immediately.

But what did the Commission mean by some of the recommendations, which, when you read them from the point of view of a legislator, or someone who can affect policy in the criminal justice system, might not be quite as clear as they could be?

And what about point 2.5 recommending that anyone imprisoned for HIV non-disclosure, potential exposure or non-intentional transmission have their case reviewed? Although it doesn’t spell out the criteria for review, they should be consistent with the International Guidelines on HIV and Human Rights published by UNAIDS and the Office of the United Nations High Commissioner for Human Rights (OHCHR). Since 1998 they have recommended that in order for someone to be convicted, “the elements of foreseeability, intent, causality and consent [must be] clearly and legally established to support a guilty verdict….” If we now consider that the Commission recommends that only intentional and malicious transmission should be a crime, if the above criteria have not been met (and in most cases they have not), the Global Commission recommends immediate release from prison, a pardon and removal of criminal records (and in the US and Canada, removal from the sex offender registry).

I asked Professor Matthew Weait, who served as a member of the Technical Advisory Group for the Commission (the TAG), with particular responsibility for HIV criminalisation about how we should interpret recommendations 2.1, 2.2 and 2.4 in the real world.

The excellent working paper that he prepared for the Commission, The Criminalisation of HIV Exposure and Transmission: A Global Review is also now available to download. A second paper, Criminalisation and the Moral Responsibility for Sexual Transmission of HIV by Matthew and his fellow TAG member, Professor Scott Burris is also now available.

Q: In 2.1 Does the Commission only recommend repealing laws that explicitly criminalise non-disclosure, exposure or transmission? What, for example, does that mean for Canada, which uses general laws to prosecute non-disclosure?

It’s a good question! Before I answer it, can I emphasise that what I say here should in no way should be seen as reflecting the views or interpretation either of other TAG members, the Commissioners, or the UNDP Secretariat that provided logistical and other support. They are personal views. So – with that in mind – I think it’s important to read this Recommendation in the context of the Report as a whole. What is abundantly clear is that the Commission believes that only the actual and deliberate transmission of HIV may legitimately be criminalised, and all the Recommendations need to be read in that light. This means, in my view, that countries which criminalise HIV under their general laws are also being addressed here. The reason is that in many such countries it is only HIV transmission, exposure and non-disclosure which is prosecuted in the criminal courts under general provisions which could also be used in the context of other diseases. The fact that other diseases are not, or extremely rarely so, means that HIV is – to my mind – explicitly criminalised. Just because HIV is criminalised under a general law doesn’t detract from the fact that such criminalisation is explicit in practice. You’ll have to follow this up with the Commission though!

Q: In 2.2 Does the Commission mean that law enforcement authorities can prosecute for HIV exposure and non-disclosure where there is proof of intentional or malicious transmission?

I don’t think so, no. The “must not” construction of the Recommendation does not imply the opposite, especially where to read it this way would be against the entire tenor of the Report. It is very important, in my view, that law enforcement authorities do not take this as a “green light” – not only because it would lead to over-criminalisation (belt and braces) – but it would serve no purpose.

Q: In 2.4 Does the Commission suggest that prosecutions can still take place that aren’t malicious? How do you prosecute “with care”?

This Recommendation is in permissive language, similar to that used in the UNAIDS 2008 Policy Guidance, and does not – I think this is important – mandate criminalisation as such. It seems to me to be intended to provide states with a “let out” clause, reflecting the views of many in the wider HIV policy community, and is politically pragmatic and realistic. Some might think it is a unfortunate that this is in a list of Recommendations, but I think I understand why it has been. It might have been better to phrase the Recommendation in the form, “If countries wish to criminalise HIV, they should only do so in cases of actual and intentional transmission”, but I don’t think we should get too hung up on the exact language here. As with the other Recommendations, it has to be read in the light of everything else in the Report, where it is clear that Commission is arguing for the most restrictive approach possible. It will also, by the way, be important to see whether the Report itself addresses in more detail what is meant by intentional and malicious. Different jurisdictions interpret these terms is in a variety of ways – some equating them with knowledge of status, some with knowledge of the risk of transmission, and some with deliberate or purposive intent (or a combination of all these). The fact that the Commission uses the term “malicious” in Recommendation 2.2 suggests that it has in mind deliberate and purposive intention

As for question of pursuing prosecutions ‘with care’, it is clear that the Commission has affirmed what has been emphasised in a number of recent policy documents, including a recent initiative of UNAIDS. The highest (I would personally have preferred that, rather than “high”) is necessary when dealing with liability based on expert evidence (as transmission cases typically are, at least where the scientific analysis facilities are available).

Catherine Hanssens highlights the problem with US HIV disclosure laws

This morning, the Global Commission held a press conference that featured several of the Commissioners: US Congresswoman Barbara Lee; Canada’s Stephen Lewis (Co-Director and Co-Founder of AIDS-Free World); and His Excellency Mr. Festus Gontebanye Mogae, former President of Botswana.

Three members of civil society also participated: Nevena Ciric, More than Help, AIDS +, Serbia; Maurice Tomlinson, AIDS-Free World, Jamaica and Nick Rhoades, Positive Justice Project, The Center for HIV Law and Policy, United States.

Nick Rhoades spoke with clarity and power about the lessons learned from his own terrible experience. HIV criminalisation wastes money, harms prevention and human rights, he concluded. Return sanity, science and justice to HIV laws.

I was convicted in 2008 under Iowa’s law titled “criminal transmission of HIV” although HIV was not actually transmitted. This involved a one-time, consensual sexual encounter with another adult. My viral load was undetectable, I used a condom – and again, I did not transmit HIV. However, none of these facts mattered in the eyes of the law. The judge imposed the maximum sentence of 25 years in prison and the requirement to register as a sex offender for the rest of my life. After sentencing, the judge was subject to a significant amount of pressure from advocates in the U.S. and even Europe – requesting my sentence be reconsidered. After being incarcerated for over a year, he released me on five years probation, but I am of course, still a sex offender. [Nick is now appealing his conviction.]

During my course through the correctional system, I transferred facilities four times. Each time I was transferred, I would be either without medications or missing certain medications for a period of days. And when I was released, I had lost my place on the AIDS Drug Assistance Program, so I was put on a wait-list. The correctional system offered no assistance in finding a social worker or medication assistance once I was released from prison.

The personal toll this has taken on me and my family and friends cannot be measured. This has caused great mental anguish, financial burdens and major professional barriers for me, now that I am a sex offender. I have been virtually unemployable. I am fortunate enough now to be employed from home by The Center for HIV Law & Policy, but most aren’t so lucky. To this day, I deal with terrible depression. It’s not easy.

What’s more, the price to enforce these archaic laws is considerable. The approximate cost to tax-payers to incarcerate just one individual in Iowa – factoring in the cost of medications and routine medical care is approximately sixty-five to seventy thousand dollars annually. This cost is borne by tax-payers and doesn’t include the lost income and contribution to society that incarceration causes. Then consider the price to supervise people convicted under these laws while on probation or parole – often being forced to add in the costs of monitoring offenders on the sex offender registry – and the public is paying an incredible amount of money for enforcing laws that, more often than not, are punishing people for not transmitting HIV. In many cases, such as mine, taxpayers are paying for the enforcement of laws that punish people with HIV who actually follow the primary prevention messages of public health counselors: stay in treatment, keep your viral load as close to undetectable as possible, use condoms – and otherwise, keep sex safe[r].

These laws enhance stigma that cripples people living with HIV/AIDS from accessing services. They make disclosure issues much more difficult due to ramifications one may face with a mere accusation. I also believe stigma, made thicker by these laws, is keeping people from getting tested.

Furthermore, I have been a member of the Iowa HIV Community Planning group – chaired by the Iowa Department of Public Health – since 2009. I see all the data. This year, the Iowa Department of Public Health’s prevention-based budget faced a 25% decrease which will eventually grow to 55% over the next five years. Dollars marked to treat people in care are next for slashing. Those in care and with undetectable viral loads are up to 96% less likely to transmit the virus, yet we are cutting funding away from proven HIV prevention programs while increasing costly prosecution and imprisonment of people like me living with HIV. When one considers that there is no evidence that these laws have any impact on people’s sexual behaviors, it is clearly not an effective use of our resources while infringing on individuals’ human rights and working in conflict with public health goals.

Criminal laws and policies that target people based on their HIV status must be repealed. Please support Congressperson Barbara Lee’s “Repeal HIV Discrimination Act” now, and engage with those who are promoting the movement to return sanity, science and justice to the law’s treatment of HIV.

Following Nick’s powerful testminony, much of the rest of the Global Commission press conference mostly focused on HIV criminalisation in the US and Canada – as it should since the vast majority of prosecutions take place in these two countries, a fact highlighted by Stephen Lewis and echoed by Nick Rhoades.

I was very honoured to be quoted in the report.

I asked Rep. Barbara Lee how it is posssible to change these bad laws when it appears that they have popular support. “Modernising these laws won’t be easy,” she said. “But I have to tell you that the public isn’t really aware of these laws. Once you explain it to them, they’re shocked. What we have to do is mount public education campaigns about these laws. At state level, many state legislators don’t know these laws are on the books, and they can change them if there is the political will. So we need public and political education and civil society support for a political movement to hold politicians accountable. But… yes we can!”

As for other countries using general criminal laws to prosecute non-disclosure, potential exposure and transmission, in the next few months UNAIDS will be releasing a policy consideration document that will help countries understand exactly how to limit their application through a better understanding of HIV science as well as public health and human rights principles.

There’s going to be a lot more happening around the Global Commission’s Report and all of the amazing evidence the Commission accrued during it’s two year existence. I recommend spending time on the Global Commission website where you will now find a treasure trove of documents to help further anti-criminalisation advocacy and eventually lead to HIV justice for all.