US: Laws should not penalise marginalised populations that might lack access to drugs, instead HIV exposure should be decriminalised altogether unless there was clear intent to infect someone

Sex with HIV still a crime? Updated laws divide advocates

ATLANTA (AP) — As Sanjay Johnson describes it, his sexual encounter with James Booth on Oct. 2, 2015, was a one-night stand. But it would bind the men inextricably two years later, when Booth walked into an Arkansas police station and accused Johnson of exposing him to HIV.

Little Rock prosecutors pursued a criminal charge against Johnson even though a doctor said he couldn’t have transmitted HIV to Booth because he was on medication that suppressed his virus.

“It really tested me just to keep going,” Johnson said about his criminal case, which ended this year. “Last year, I thought of suicide.”

Booth said he deserved to know about Johnson’s HIV status regardless of any medical treatment.

“I could have protected myself,” he said.

Roughly 20 states have laws like the one in Arkansas that make it a crime for people with HIV to have sex without first informing their partner of their infection, regardless of whether they used a condom or were on medication that made transmission of the disease effectively impossible.

Health experts and advocates for HIV patients say that rather than deterring behavior that could transmit the virus, such laws perpetuate stigma about the disease that can prevent people from getting diagnosed or treated.

North Carolina and Michigan recently updated their HIV policies to exempt HIV patients from prosecution if they’re on medication that has suppressed their virus. A Louisiana law that took effect in August 2018 allows defendants to challenge a charge of exposing someone to HIV by presenting evidence that a doctor advised them they weren’t infectious.

Many advocates say the new policies create an underclass of people who lack access to drugs and are therefore still vulnerable to prosecution. They say states should instead decriminalize HIV exposure altogether unless the person intends to infect someone.

“We shouldn’t be creating laws that create additional strata and divisiveness among already marginalized populations,” said Eric Paulk, deputy director of Georgia Equality.

The fight comes as the Trump administration aims to eradicate HIV — the virus that causes AIDS — by 2030.

The laws’ defenders point to statistics showing tens of thousands of new HIV diagnoses each year and say that although the disease may not be a death sentence anymore, it still requires a lifetime of expensive medical treatment.

The Arkansas attorney general’s office filed a brief last year in Johnson’s case rejecting the argument that criminalizing HIV exposure no longer served any purpose.

“HIV remains a serious threat to public health,” it wrote.

In Booth and Johnson’s case, they met through a gay dating app.

According to Booth, Johnson denied he was HIV positive before they had unprotected sex. Johnson, 26, said he didn’t remember discussing his HIV status.

A plea deal that prosecutors offered Johnson shows officials were mindful of advances in the science around HIV, said John Johnson, chief deputy prosecutor in Pulaski County. The deal allowed the accused man to avoid prison time and have his record expunged.

But prosecutors also wanted to promote the importance of disclosing HIV to potential sexual partners, he said.

“The flip side of this coin is that there is a victim to this crime,” the prosecutor said.

People with HIV who are on antiretroviral drugs that keep their viral load below a specific threshold have “effectively no risk” of transmitting HIV, according to the federal Centers for Disease Control and Prevention. But as of 2016, only a little more than half of the estimated 1.1 million people living with HIV in the U.S. were virally suppressed, the CDC says.

Sarah Lewis Peel, spokeswoman for North Carolina’s Department of Health and Human Services, said in an email that her state’s new policy ensures HIV prevention and control strategies are “firmly rooted in science.” Responding to criticism that the change leaves some people behind, she listed multiple programs that cover HIV medication.

Critics say states should decriminalize HIV exposure altogether unless there’s intent to infect someone. That would reflect the reality that HIV is manageable and not easy to contract, dozens of advocacy groups said in a July 2017 consensus statement.

Georgia may be headed in that direction. Pending legislation would require intent to transmit HIV for a prosecution.

It’s not clear how many people have faced prosecution under HIV laws around the country, but data from two states analyzed by a think tank at the University of California, Los Angeles, School of Law indicate they aren’t isolated occurrences. Florida and Georgia authorities made nearly 1,500 arrests on suspicion of HIV-related crimes from the 1980s through 2017, hundreds of which resulted in convictions, according to the Williams Institute.

Booth said he tested positive for HIV after his encounter with Johnson. Johnson’s doctor, Nathaniel Smith, told The Associated Press that Booth couldn’t have contracted HIV from Johnson because a lab test around the time of their encounter showed Johnson’s viral load was too low. Smith, who testified in Johnson’s case, also directs the Arkansas Department of Health.

Johnson pleaded no contest in February to aggravated assault as part of his deal with prosecutors and was sentenced to five years’ probation. He would have faced up to 30 years behind bars and the possibility of having to register as a sex offender had a jury convicted him of the HIV-exposure charge.

He has a new job helping people manage their diets but said his arrest and prosecution left a scar.

“It did make me more closed off,” he said.

Booth said he has sympathy for what Johnson went through but stands by his decision to tell police.

“It was something that needed to be done,” he said.

Copyright © 2019 The Associated Press

Jamaica: “Criminalisation related to HIV is a seductive distraction from what we really should be focusing on”

Is Criminalising HIV Helpful?

According to the 2017 Knowledge, Attitudes and Behaviour Survey by Jamaica’s Ministry of Health, one out of every five persons with multiple sexual partners never used a condom the last 10 times they had sex.

Fortunately, due to certain features of HIV and of our immune system, HIV does not always get transmitted every time someone is exposed. According to a top scientific journal, there is a one in 300 chance of the virus being passed from a man with HIV to a woman during sex. The overall risk goes up with each additional sexual act. The possibility exists that infection can occur the first time you have sex. The risk increases in certain situations, including the presence of sexually transmitted infections like syphilis and the time period just after becoming infected.

Avoiding HIV testing, some persons wrongly presume themselves to be infected based on the possibility that they had been exposed, or they wrongly presume themselves to be negative if a partner tests negative. No public-health initiative, indeed no law, obviates the importance of individuals taking responsibility for their health, embracing their right to pleasurable sex, yes, and empowered to seek out accurate information, getting tested regularly, and using protection.

Because we have become so accustomed to all the things that are wrong with our health system and legal system, we assume a state of powerlessness and thereby continue to embrace the status quo. Unfortunately, the set-up of some clinics is such that your diagnosis is made obvious by virtue of walking into a particular room.

The absence of anti-discrimination laws contributes to unfair treatment of persons living with HIV who are pressured out of their jobs, with a downhill spiral of their economic and health status. There is increasing access to redress for those who experience discrimination, and stigma from healthcare workers may be decreasing, but not nearly enough. The implementation of evidence-based prevention measures is slow, and I am hard-pressed to think of anything that could justify the withholding of such measures, especially in light of the fact that HIV infections have not stopped, many persons with HIV are deterred from accessing treatment, and majority of those in care have not attained optimal health status.

Criminalisation related to HIV is a seductive distraction from what we really should be focusing on.

INTERNATIONAL PRECEDENTS

In Scotland, a 20-year old man was convicted based on similarities in the genetics of HIV in his blood sample and his wife’s sample. His wife had reportedly contracted HIV from him during sexual intercourse in the two to three months right after he had become infected during a prior incarceration. The risk of transmitting HIV is 30 times greater in the first few weeks of becoming newly infected due to the large amount of HIV circulating in the body before the immune system manages to get a temporary hold on this new germ.

In Canada, a man was convicted under existing laws, charged with assault with a deadly weapon, after having sex without a condom with at least two women, despite a nurse’s insistence that he should disclose his HIV status. The Crown found that under Section 268 of Canada’s Criminal Code, the man’s sexual partners’ lives had been endangered, and no transmission needed to have actually occurred.

More than 60 countries have had prosecutions related to exposure, non-disclosure or transmission of HIV. One-half of these countries have done so under pre-existing laws, the others under specific legislation related to HIV. Adequate protection and remedies can be found in existing criminal laws, and the stigma of HIV-specific criminalisation can be avoided.

PUBLIC HEALTH AND THE LAW

Jamaica’s Joint Select Committee to review the Sexual Offences Act recommended that the law “should be amended to make it a criminal offence for someone to wilfully or recklessly infect a partner.” Concerns have been voiced as to whether criminalising HIV transmission will discourage persons from knowing their status.

According to researchers at the University of Edinburgh, a 25 per cent drop in HIV testing could result in a 50 per cent increase in HIV infections. Persons may be deterred from testing as they may believe that not knowing their status means that they are not at risk of being charged under the proposed law.

Although testing may be available virtually everywhere, stigma and privacy concerns are serious impediments to HIV testing being truly universally accessible.

During discussions, it is not always clear what exactly it is being proposed should be criminalised. What is the evidence to be relied on to prove that transmission occurred from person A to person B? Techniques for proving transmission from one person to another still require standardisation, are costly, and not widely available.

SCIENCE AND THE LAW

Another concern is whether a laboratory could be served a warrant, demanding that it hand over blood samples from patients. It may be possible to deduce ‘clusters’ of individuals linked by similarities in the genetic make-up of the HIV virus. Based on such clusters, individuals could become stigmatised based on assumptions that they belong to a particular social sexual network, for example, sex work or intravenous drug use, be it true or not. Information about the genetic make-up of a human being can be deduced based on unique ‘footprints’ left on the virus by an individual’s immune system.

Currently, this may seem like innocuous information, but if a particular genetic feature is subsequently found to be linked to one’s risk for cancer or lifespan, for example, one can imagine this information being (mis)used to influence insurance premiums or reproductive decisions.

Further, there is scientific proof that HIV is not transmitted from someone living with HIV who sticks to their antiretroviral medications resulting in totally suppressed HIV virus to the point where it is undetectable in the blood and semen and other body fluids.

The World Health Organization has adopted this as an important strategy in stopping the HIV epidemic. There remains room for improvement in raising awareness of these positive developments among patients, clinicians, and advocates, not to mention lawmakers.

Discussions about criminalisation of HIV can easily fall trap to fearmongering. A fundamental question is whether such legislation is helpful or would pose a hindrance to getting the thousands of Jamaicans who do not know their status to test and to retaining those who are receiving care.

[The views expressed are my own, and not necessarily those of any affiliate past or present.]

Dr White is medical director at Para Caribe Consulting Medical Doctors. Email feedback to yourhealth@gleanerjm.com and yohann.white@caribewellness.com; Social Media: @CaribeWellness.

US: Michael Johnson’s release has reignated calls to overhaul HIV exposure laws.

He Emerged From Prison a Potent Symbol of H.I.V. Criminalization

Last week, Michael L. Johnson, a former college wrestler convicted of failing to disclose to sexual partners that he was H.I.V. positive in a racially charged case that reignited calls to re-examine laws that criminalize H.I.V. exposure, walked out of the Boonville Correctional Center in Missouri 25 years earlier than expected.

Mr. Johnson, 27, was released on parole on Tuesday after an appeals court found that his 2015 trial was “fundamentally unfair.” His original sentence was longer than the state average for second-degree murder.

Reached by phone two days after his release, Mr. Johnson said he was rediscovering freedom through convenience store snacks, cartoons and his cellphone.

“I’m feeling really, really good,” he said.

But there were periods when he felt intimidated by people who did not believe he had a right to stand up for himself, he added.

His case, which encompasses a half-dozen years of court appearances, unflattering headlines and stints in solitary confinement, has galvanized advocates working to update laws that they say further stigmatize and unfairly penalize people with H.I.V.

Mr. Johnson, who was a black, gay athlete at Lindenwood University in St. Charles, Mo., has become a public face of people who are disproportionately affected by the virus and entangled in the criminal justice system. (If current trends continue, about half of all black men who have sex with men in the United States will eventually learn they have H.I.V., according to the Centers for Disease Control and Prevention.)

Mr. Johnson’s legal troubles began in 2013, when he was arrested after a white man he had had consensual sex with told the police he believed that Mr. Johnson had given him the virus.

Five other men, three of them white, would later testify that Mr. Johnson had not only failed to disclose his H.I.V. status before engaging in consensual sex, but had willfully lied about it.

Mr. Johnson has publicly maintained that he informed all six men he was H.I.V. positive before having sex without a condom.

After a weeklong trial in 2015 in St. Charles County, a conservative, predominantly white area northwest of St. Louis, Mr. Johnson was convicted on multiple felony counts, including recklessly infecting another with H.I.V., which carries a 10-year minimum sentence.

The jury sought the maximum penalty of 60½ years even though prosecutors offered no genetic evidence that Mr. Johnson had infected any of his partners, according to BuzzFeed News.

The judge ultimately sentenced him to 30 years in prison.

Today, some of the people who put him in prison say the sentencing and parts of the prosecution were mishandled.

“We’re still operating under laws that were based on views that are outdated and are proven inaccurate by science,” said Tim Lohmar, the St. Charles County prosecuting attorney, whose office’s handling of the trial has been criticized.

Missouri is one of about 34 states with laws that make it a crime to expose another person to the virus without disclosure or add additional penalties for people with H.I.V. who are convicted of separate offenses, such as sex work, according to the nonprofit Center for H.I.V. Law and Policy. In six states, a person may be required to register as a sex offender if convicted of an H.I.V.-related crime.

Many of these laws were written in the 1980s and 1990s under a fog of fear about the virus and how it was transmitted, and before the advent of effective treatments. In those years, Magic Johnson’s sweat on the basketball court and Greg Louganis’s blood on a diving board panicked fans and teammates. Parents pulled children from school in 1985 because an H.I.V.-positive boy with hemophilia was in their seventh-grade class.

Back then, an H.I.V. diagnosis meant debilitating symptoms and almost certain death.

For the last five years, Steven Thrasher, a journalism professor at Northwestern University, has chronicled Michael L. Johnson’s case for BuzzFeed News and recently completed his doctoral dissertation on race and H.I.V. criminalization.

Dr. Thrasher, who greeted Mr. Johnson outside the correctional facility on Tuesday, said he was first drawn to the case because of its parallels with the history of black sexuality and lynching.

“Black men would just get lynched anytime they had sex with white women in the Reconstruction period,” he said. “There was no consensual sex that could be had between white women and black men.”

Mr. Johnson’s wrestler’s body — he called himself “Tiger Mandingo” online — was a source of fascination for some of his partners. But when Mr. Johnson tested positive for H.I.V., Dr. Thrasher wrote, he became “the perfect scapegoat.”

“It was not that he had no agency or responsibility in the story,” Dr. Thrasher said on Thursday, but “he was really holding all of this anxiety and all of this worry about AIDS and stigma and H.I.V. and queerness in America all on his shoulders.”

Mr. Lohmar, the St. Charles County prosecutor, said on Thursday that “nothing about the trial was unfair,” except for his team’s failure to present certain evidence to the defense in time.

Because prosecutors did not disclose some evidence to the defense until the morning of the trial — recorded phone conversations Mr. Johnson made while in the county jail — an appeals court decided to overturn the conviction 17 months after the original sentencing.

Instead of a new trial, Mr. Johnson, who previously had a clean criminal record, accepted a plea deal in which he did not admit guilt but agreed to a 10-year sentence.

Eric M. Selig, the lawyer who negotiated on Mr. Johnson’s behalf, said the original sentence was disproportionate to the crime.

“We don’t charge people with other incurable diseases, like hepatitis, with a criminal offense for exposing others,” he said.

During his incarceration, Mr. Johnson wrote thank-you notes to friends and strangers who had written to him in support, which he said helped him deal with homophobia in prison and self-doubt.

“You lose your confidence,” he said. “I kept every single letter.”

In theory, H.I.V. exposure laws are meant to encourage H.I.V.-positive individuals to disclose their status before having sex, and to practice safer sex, with the ultimate goal of preventing the spread of the virus.

But there is no evidence that these laws have reduced risky behavior or encouraged disclosure, said Catherine Hanssens, the executive director of the Center for H.I.V. Law and Policy, which provided legal support for Mr. Johnson’s case.

In the eyes of the law, an H.I.V. diagnosis is conflated with malice, she added.

“These laws effectively treat an H.I.V. diagnosis itself as evidence that the person acted with bad intentions when sex or other types of physical contact are involved in a crime,” she said.

Additionally, many laws do not reflect recent treatment options that can give patients a life expectancy almost as long as the general population. A pill taken daily can almost eliminate transmission, experts say. But there remain large barriers to eradicating the virus, including the high cost of antiretroviral drugs, access issues, medical mistrust and other social barriers in poor and black communities.

While some states, like California, have reduced penalties for H.I.V. exposure, Missouri has one of the most punitive laws in the country. This year lawmakers introduced two bills into the Legislature that would have slightly reduced the penalty, but they never made it to a vote.

Mr. Lohmar said he learned of Mr. Johnson’s release after receiving a call from one of the witnesses in the trial, who was upset that he was not notified.

Mr. Johnson said he planned to return to college, learn a second language and share his story through advocacy organizations like the Ryan White Planning Council in Indiana. Younger people especially need to learn about the virus to prevent it from spreading, he said.

“You can’t do it without education.”

Alain Delaquérière contributed research.

Meredith McFadden explores the ethical issues of criminalising health statuses

The Criminalization of HIV Transmission and Responsibility for Risky Behavior

Michael Johnson was released from prison on July 9th after serving five years of his original sentence of thirty years. He was in prison for failing to disclose his HIV status to his sexual partners and his sentence was longer than the state average for murder. The conviction covered transmitting HIV to two men and exposing four more to the virus, despite “an absence of genetic fingerprinting to connect him to the other men’s HIV strains.”

Johnson’s trial highlights the racist and homophobic undertones of the continued fear around HIV exposure. The images shown to the jury emphasized the darkness of Johnson’s skin, his muscularity (he was a star football player), and that two-thirds of the allegedly exposed men were white. The racist stereotypes regarding the sexuality of black men hurt Johnson’s chances in this trial, which were already slim given cringe-worthy missteps by his court-appointed public defender who claimed her client was “guilty until proven innocent.”

In the years since the trial and conviction, Johnson’s case has been a focal point of the discussion of the sexualization of black bodies and the inherent racism and homophobia in our criminal justice system. HIV criminalization laws disproportionately affect non-straight black men. Beyond these issues of justice, there is also the family of questions of the ethics surrounding sexual health. Johnson’s case is one of many where sexual relationships and health statuses are interpreted criminally, and the laws surrounding HIV transmission are not structured to reflect current empirical understandings of how the disease spreads. 

Empirical evidence regarding HIV criminalization laws suggests that having such laws do not affect disclosure of HIV status to partners or decrease risk behaviors. A key component to the sexual ethics debate, arguably, is that people who are HIV positive can be treated to the point that it is an empirical impossibility that they transmit the virus to sexual partners. When medicated, people with HIV can have an undetectable viral load, which means that there isn’t enough of the virus in the person’s system to turn up on standard tests. This makes it basically no more likely for them to transmit HIV to their partners than a partner without HIV. 

In light of this empirical reality, how should we ethically understand the risk of sexual behaviors? In recent years, some states have taken steps to make their laws more in line with the health reality of HIV transmission in particular: California has a bill that lessens the offense of knowingly transmitting HIV to a misdemeanor and a similar bill has been proposed in North Carolina. An attorney from the office that originally prosecuted Johnson in Missouri has become a supporter of a recent failed bill that would reduce punishment for knowingly expose someone to HIV in that state.

Knowingly exposing someone to risk is an ethically interesting area. There are cases where we knowingly expose people to risks and it seems ethically unproblematic. A bus driver exposes their passengers to risk on the road. A tandem jumper exposes their client to risk diving out of a plane. A friend exposes a guest to risk cooking for them, in operating ovens, in attempting to achieve safe temperatures and adequate freshness of ingredients.

There are two major ethical principles at work here, because knowingly exposing someone to risk is putting them in a position of potential harm. Serving a dinner guest a meal that you have reasonable expectations of harming them is an ethically problematic action, and we would hold you responsible for it. 

In similar yet ethically unproblematic cases, it could be that the case satisfies an ethical principle of respecting someone’s autonomy – the person consented to take on the risk, or the risk is part of their life-plan or set of values. For example, your guest would have to consent to the risk if you are serving your guest the famed potentially poisonous fish dish from Japan, fugu, where the smallest mistake in preparation could be fatal.

Another scenario where posing potential harm to someone could be unproblematic is under circumstances where the risk is so minimal or typical that if harm were to result, we wouldn’t consider another morally culpable. If you are serving dinner to a group of people buffet-style in the winter, this increases everyone’s to the risk of catching colds and flus from one another but typically we don’t’ take this to be ethically problematic. These two principles are at play when considering the risk of sexual behaviors. 

There are reasons to take on risks to one’s health and well-being, and we 

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion”

Charting progress against discrimination

Laws discriminate in many ways, but the criminalization of people is one of the most devastating forms of discrimination. Despite calls for reform and the commitments under the 2030 Agenda for Sustainable Development to remove discriminatory laws and reduce inequalities:

  • Sixty-nine countries still criminalize same-sex sexual relationships.
  • More than 100 countries criminalize drug use or the personal possession of drugs and 98 countries criminalize some form of sex work.
  • One in five people in prison are there because of drug-related crimes and 80% of those are there for personal possession or use.
  • Nineteen countries deport non-nationals on the grounds of their HIV status.

A high-level political forum is meeting in New York, United States of America, from 9 to 18 July to review the progress made against the commitments of Member States towards achieving the Sustainable Development Goals, including those on inequality and on peace, justice and strong institutions.

“As a judge, I have seen the effect that criminal law can have on communities. It takes people outside systems of protection, declares their actions or identity illegitimate, increases stigma and excludes them from any protections our judicial, social and economic systems may provide,” said Edwin Cameron, Justice of the Constitutional Court of South Africa.

Criminalization affects access to health services, housing, education, social protection and employment. The criminalization of same-sex sexual relationships, sex work or drug use prevents people from accessing health-care services, including HIV prevention, testing and treatment. Data show that gay men and other men who have sex with men are 28 times more at risk of HIV than the general population, people who inject drugs are 22 times more at risk and sex workers and transgender women are 13 times at risk. 

“To fully implement the Sustainable Development Goal agenda and make sure that no one is left behind, we need to ensure the laws are protecting people from discrimination and not pushing people into hiding from society,” said Lloyd Russell Moyle, United Kingdom Member of Parliament.

Groups that represent criminalized people are often barred from registering as nongovernmental organizations, and, for example, sex workers often can’t unionize. Propaganda laws may mean that information on, for example, HIV prevention can’t be disseminated.

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion. We have an opportunity to harness the lessons from the AIDS movement and place rights and the meaningful participation of the most marginalized at the centre of the response,” said Luisa Cabal, Director for Human Rights and Gender, UNAIDS.

Criminalized groups often experience higher rates of violence than the general population. Victims of violence who are also criminalized often can’t report crimes against them to the police, and lawyers risk violence and other repercussions if they take up their cases.

“Discrimination against and criminalization of people living with HIV still continues to this day. And we are facing in Indonesia persistent stigma against and criminalizing of key populations. We will never end AIDS if we are not making their needs and rights a top priority for access to health care, protection against violence and realization of the right to health,” said Baby Rivona, from the Indonesian Positive Women Network.

Countries that decriminalize drug use and make harm reduction services available have seen reductions in new HIV infections. Evidence shows that decriminalizing sex work could avert between 33% and 46% of new HIV infections among sex workers and clients over 10 years. However, reductions in new HIV infections are not the only outcome—other outcomes include improvements in well-being and trust in law enforcement, reductions in violence and increased access to health-care and support services. Above all, however, decriminalization of people results in them no longer being seen as criminals and stigmatized by society.

UNAIDS and UNDP urge countries to lift all forms of HIV-related travel restrictions

UNAIDS and UNDP call on 48* countries and territories to remove all HIV-related travel restrictions

New data show that in 2019 around 48* countries and territories still have restrictions that include mandatory HIV testing and disclosure as part of requirements for entry, residence, work and/or study permits

GENEVA, 27 June 2019—UNAIDS and the United Nations Development Programme (UNDP) are urging countries to keep the promises made in the 2016 United Nations Political Declaration on Ending AIDS to remove all forms of HIV-related travel restrictions. Travel restrictions based on real or perceived HIV status are discriminatory, prevent people from accessing HIV services and propagate stigma and discrimination. Since 2015, four countries have taken steps to lift their HIV-related travel restrictions—Belarus, Lithuania, the Republic of Korea and Uzbekistan.

“Travel restrictions on the basis of HIV status violate human rights and are not effective in achieving the public health goal of preventing HIV transmission,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. “UNAIDS calls on all countries that still have HIV-related travel restrictions to remove them.”

“HIV-related travel restrictions fuel exclusion and intolerance by fostering the dangerous and false idea that people on the move spread disease,” said Mandeep Dhaliwal, Director of UNDP’s HIV, Health and Development Group. “The 2018 Supplement of the Global Commission on HIV and the Law was unequivocal in its findings that these policies are counterproductive to effective AIDS responses.”

Out of the 48 countries and territories that maintain restrictions, at least 30 still impose bans on entry or stay and residence based on HIV status and 19 deport non-nationals on the grounds of their HIV status. Other countries and territories may require an HIV test or diagnosis as a requirement for a study, work or entry visa. The majority of countries that retain travel restrictions are in the Middle East and North Africa, but many countries in Asia and the Pacific and eastern Europe and central Asia also impose restrictions.

“HIV-related travel restrictions violate human rights and stimulate stigma and discrimination. They do not decrease the transmission of HIV and are based on moralistic notions of people living with HIV and key populations. It is truly incomprehensible that HIV-related entry and residency restrictions still exist,” said Rico Gustav, Executive Director of the Global Network of People Living with HIV.

The Human Rights Council, meeting in Geneva, Switzerland, this week for its 41st session, has consistently drawn the attention of the international community to, and raised awareness on, the importance of promoting human rights in the response to HIV, most recently in its 5 July 2018 resolution on human rights in the context of HIV.

“Policies requiring compulsory tests for HIV to impose travel restrictions are not based on scientific evidence, are harmful to the enjoyment of human rights and perpetuate discrimination and stigma,” said Dainius Pūras, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health. “They are a direct barrier to accessing health care and therefore ineffective in terms of public health. I call on states to abolish discriminatory policies that require mandatory testing and impose travel restrictions based on HIV status.”

The new data compiled by UNAIDS include for the first time an analysis of the kinds of travel restrictions imposed by countries and territories and include cases in which people are forced to take a test to renew a residency permit. The data were validated with Member States through their permanent missions to the United Nations.

UNAIDS and UNDP, as the convenor of the Joint Programme’s work on human rights, stigma and discrimination, are continuing to work with partners, governments and civil society organizations to change all laws that restrict travel based on HIV status as part of the Global Partnership for Action to Eliminate all Forms of HIV-Related Stigma and Discrimination. This is a partnership of United Nations Member States, United Nations entities, civil society and the private and academic sectors for catalysing efforts in countries to implement and scale up programmes and improve shared responsibility and accountability for ending HIV-related stigma and discrimination.

*The 48 countries and territories that still have some form of HIV related travel restriction are: Angola, Aruba, Australia, Azerbaijan, Bahrain, Belize, Bosnia and Herzegovina, Brunei Darussalam, Cayman Islands, Cook Islands, Cuba, Dominican Republic, Egypt, Indonesia, Iraq, Israel, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Lebanon, Malaysia, Maldives, Marshall Islands, Mauritius, New Zealand, Oman, Palau, Papua New Guinea, Paraguay, Qatar, Russian Federation, Saint Kitts and Nevis, Samoa, Saudi Arabia, Saint Vincent and the Grenadines, Singapore, Solomon Islands, Sudan, Syrian Arab Republic, Tonga, Tunisia, Turkmenistan, Turks and Caicos, Tuvalu, Ukraine, United Arab Emirates and Yemen.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

Canada: Justice Committee report recommends wide-ranging reforms to HIV criminalisation, including removing HIV non-disclosure from sexual assault law

Yesterday, the House of Commons Standing Committee of Justice and Human Rights released a ground-breaking report “The Criminalization of HIV Non-Disclosure in Canada” recommending that the Government of Canada works with each of the Canadian provinces and territories to end the use of sexual assault law to prosecute allegations of HIV non-disclosure.

According to a press release issued by our HIV JUSTICE WORLDWIDE partners, the Canadian HIV/AIDS Legal Network:

People living with HIV currently face imprisonment for aggravated sexual assault and a lifetime designation as a sex offender for not disclosing their HIV status to sexual partners, even in cases where there is little or even zero risk of transmission. This means a person engaging in consensual sex that causes no harm, and poses little or no risk of harm, can be prosecuted and convicted like a violent rapist. We welcome the Committee’s recognition of this unjust reality and their call to end the use of sexual assault laws. We and our allies have spent many years advocating for this critical change.

The report also recommends that Canada limits HIV criminalisation to actual transmission only. The Legal Network notes:

But we must go further: criminal prosecution should be limited to cases of intentional transmission as recommended by the UN’s expert health and human rights bodies. Parliament should heed such guidance. Criminal charges and punishments are the most serious of society’s tools; their use should be limited and a measure of last resort.

However, one of the recommendations that the Legal Network takes issue with is the recommendation to broaden any new law to include other infectious diseases.

Infectious diseases are a public health issue and should be treated as such. We strongly disagree with the recommendation to extend the criminal law to other infectious diseases. We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.

Currently, there is a patchwork of inconsistent approaches across each province and territory. Only three provinces — Ontario, British Columbia and Alberta — have a formal policy in place or have directed Crown prosecutors to limit prosecutions of HIV non-disclosure, and they all fall short of putting an end to unjust prosecutions.

A December 2018 federal directive to limit HIV criminalisation, which solely applies to Canada’s territories, is already having some impact — in January 2019 it led to Crown prosecutors in the Northwest Territories dropping a wrongful sexual assault charge against a man living with HIV in Yellowstone. “We followed the directive and chose not to prosecute,” said Crown attorney Alex Godfrey.

Other positive recommendations in the report include:

  • An immediate review of the cases of all individuals who have been convicted for not disclosing their HIV status and who would not have been prosecuted under the new standards set out in the recommendations of the Committee.
  • These standards must reflect “the most recent medical science regarding HIV and its modes of transmission and the criminal law should only apply when there is actual transmission having regard to the realistic possibility of transmission. At this point of time, HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission.”
  • And, until a new law is drafted and enacted (which is only likely to happen if the current Liberal Government is re-elected in October), there should be implementation of a common prosecutorial directive across Canada to end criminal prosecutions of HIV non-disclosure, except in cases where there is actual transmission.

The report also recommends that any new legislation should be drafted in consultation with “all relevant stakeholders including the HIV/AIDS community”, which the Legal Network also welcomed.

The report is the result of a study of the ‘Criminalization of Non-Disclosure of HIV Status’ that ran between April and June 2019. Many Canadian experts testified as key witnesses to help MPs gain insight into why Canada’s current approach is wrong. HIV JUSTICE WORLDWIDE also submitted a brief to the committee, providing international context to Canada’s extremely severe approach to HIV non-disclosure.

The Legal Network concludes:

The next step is actual law reform. The report makes clear that change to the criminal law is needed. Any new legal regime must avoid the harms and stigma that have tainted the law these past 25 years.

US: Black/queer communities bear the grunt of HIV criminalisation laws

How HIV Stigma Leads To The Criminalization Of Black Queer Communities

After the 1990s, many black and queer people have been charged with crimes related to stigma.

After the HIV/AIDS epidemic in the 1990s, many black and queer people have lived with the stigma attached to their communities. 

The association between the disease and queerness began when many of the first cases involving HIV concerns were found among gay men in 1981. Though it has been proven having sex with queer folks doesn’t constitute transmission of HIV, many remain less informed on the topic. 

This belief has filtered into the criminal justice system, where queer people have been targeted as the culprits of HIV and AIDS transmission. According to Centers for Disease Control and Prevention, 60 percent of black people who receive HIV diagnoses are queer, black men. 

They say 90 percent of black heterosexual women have received a positive HIV diagnosis. Those who are infected with HIV often receive proper care, wear condoms, or have successfully suppressed the virus. Yet, black queer folks tend to have more encounters with the criminal justice system regarding possible HIV exposure, transmission, and disclosure. 

In 2015, a black gay man named Michael Johnson was charged with reckless exposure in Missouri, for not disclosing his HIV positive status with his partners. Missouri’s law states partners must disclose their HIV positive status, even if they are practicing safe sex. 

He was later portrayed by media and prosecutors as a predator, and often referred to as the screen name he used to meet potential partners: “Tiger Mandigo.” Because his accusers were white gay men, who possibly saw Johnson as a threat, he was sentenced to 30 years in prison. 

HIV criminalization laws, like the one in Missouri, refuse to look at advances in HIV prevention and care. Instead, they look to lock up folks to stop the spread of what the law constitutes as a HIV epidemic. 

Science has proven HIV criminalization laws are not reducing the transmission of HIV. They are actually scaring folks, especially in black/queer communities, from going in for a HIV screening. If their diagnosis comes back positive, and they don’t share that information with partners — for fear of abandonment by their partners due to the stigma that HIV holds — they are subject to criminal prosecution. 

Since their formation, state laws have not been revised to reflect the advances in HIV treatment and prevention. Many HIV positive folks use condoms, ask for consent prior to sex, and receive treatment such as PreP. Some folks living with HIV are virally suppressed. 

Science has also shown the likelihood of HIV transmission is rare even if it is intentional. Some state laws even criminalize those with HIV for spitting or biting during sex, when science has shown saliva is not a method of HIV transmission. 

HIV criminalization laws specifically refuse to look at the evidence and use the stigma to target black queer communities for punishment, and exclude them from society. Southern states house 21 of the areas with the highest likelihood of transmission among black queer men. 

The South also has the highest mass incarceration rates, with states like Louisiana and Mississippi locking up black people the most. 

The logic, possibly, is if we lock away all those who are HIV positive for possibly transferring the virus to their partners, then the spread will be controlled and all risk will be eliminated. But, some rates of transmission have not changed despite HIV criminalization laws currently in place. 

For example, between 2012 and 2016, the rate of black, gay, and bisexual men with HIV diagnoses remained the same.

However, black/queer folks bear the grunt of these laws as they are often the target of incarceration. A total of 38 states have laws that punish people for having potential to expose someone to a STD, which includes HIV. 

Those laws include sentence enhancement if the case pertains to possible HIV exposure, transmission, or lack of disclosure. A total of 28 states have criminalization laws that are HIV specific. Then, 19 states specifically require those who are HIV positive to disclose their status to their sexual partners. 

Two-thirds of those with HIV, who are facing prosecution in states with HIV specific laws, are black. In almost every case of HIV specific prosecution, the accused have been convicted and sentenced to prison. 

Charging black queer people who are HIV positive with carceral punishment is another way of shaming them for enjoying pleasure in the guise of disease containment. If the point of ensuring safety from transmission is to contain the virus, then putting black queer folks in prison isn’t the answer. 

It instead reinstates more violence onto black/queer folks, and disregards their safety in a justice system stacked against them. It has been proven placing those who are HIV positive into prisons doesn’t de-escalate the epidemic. It only delays the process of getting everyone infected the care they need. 

It also continues to stigmatize black/queer communities who already have enough to worry about. States need to eliminate these HIV specific criminal laws and let black/queer communities live in peace.

 

Making Media Work for HIV Justice: An introduction to media engagement for advocates opposing HIV criminalisation now available in Spanish, French and Russian

Today, HIV JUSTICE WORLDWIDE has published “Making Media Work for HIV Justice: An introduction to media engagement for advocates opposing HIV criminalisation” in three additional languages: Spanish, French and Russian. [Click on the image to download the pdf]

The pMedia toolkit - Frenchurpose of this critical media toolkit is to inform and equip global grassroots advocates who are engaged in media response to HIV criminalisation–and to demystify the practice of working with, and through, media to change the conversation around criminalisation.

The toolkit provides an introduction to the topic of HIV criminalisation and the importance of engageMedia toolkit - Spanishment with media to change narratives around this unjust practice.

The toolkit also includes reporting tips for journalists, designed to educate writers and media makers around the nuances of HIV criminalisation, and the harms of inaccurate and stigmatising coverage.

Finally, the toolkit also includes a number of case studies providing examples of how media played a significant role in the outcome, or the impetus, of HIV criminalisation advocacy.

Media toolkit - RussianPositive Women’s Network – USA (PWN-USA), the HIV JUSTICE WORLDWIDE Steering Committee member organisation that produced the toolkit, has been working on HIV criminalisation for many years, and was an instrumental part of the coalition that brought HIV criminal law reform to the US state of California.

The original English version of “Making Media Work for HIV Justice: An introduction to media engagement for advocates opposing HIV criminalisation” along with the translations, were supported by a grant from the Robert Carr Fund for Civil Society Networks.

The new translations are the latest additions to the HIV JUSTICE Toolkit, currently available in English and French, and soon to be available in Spanish and Russian, which provides resources from all over the world to assist advocates in approaching a range of advocacy targets, including lawmakers, prosecutors and judges, police, and the media.

New report analyses the successes and challenges of the growing global movement against HIV criminalisation

A new report published today (May 29th 2019) by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE provides clear evidence that the growing, global movement against HIV criminalisation has resulted in more advocacy successes than ever before. However, the number of unjust HIV criminalisation cases and HIV-related criminal laws across the world continue to increase, requiring more attention, co-ordinated advocacy, and funding.

Advancing HIV Justice 3: Growing the global movement against HIV criminalisation provides a progress report of achievements and challenges in global advocacy against HIV criminalisation from 1st October 2015 to 31st December 2018.

Although the full report is currently only available in English, a four-page executive summary is available now in English, French, Russian and Spanish.  The full report will be translated into these languages and made available later this summer.

The problem

HIV criminalisation describes the unjust application of criminal and similar laws to people living with HIV based on HIV-positive status, either via HIV-specific criminal statutes or general criminal or similar laws. It is a pervasive illustration of how state-sponsored stigma and discrimination works against a marginalised group of people with immutable characteristics. As well as being a human rights issue of global concern, HIV criminalisation is a barrier to universal access to HIV prevention, testing, treatment and care.

Across the globe, laws used for HIV criminalisation are often written or applied based on myths and misconceptions about HIV and its modes of transmission, with a significant proportion of prosecutions for acts that constitute no or very little risk of HIV transmission, including: vaginal and anal sex when condoms had been used or the person with HIV had a low viral load; oral sex; and single acts of breastfeeding, biting, scratching or spitting.

Our global audit of HIV-related laws found that a total of 75 countries (103 jurisdictions) have laws that are HIV-specific or specify HIV as a disease covered by the law. As of 31st December 2018, 72 countries had reported cases: 29 countries had ever applied HIV-specific laws, 37 countries had ever applied general criminal or similar laws, and six countries had ever applied both types of laws.

Cases infographic During our audit period, there were at least 913 arrests, prosecutions, appeals and/or acquittals in 49 countries, 14 of which appear to have applied the criminal law for the first time. The highest number of cases were in Russia, Belarus and the United States. When cases were calculated according to the estimated number of diagnosed people living with HIV, the top three HIV criminalisation hotspots were Belarus, Czech Republic and New Zealand.

Screenshot 2019-05-29 at 10.27.51The pushback

Promising and exciting developments in case law, law reform and policy took place in many jurisdictions: two HIV criminalisation laws were repealed; two HIV criminalisation laws were found to be unconstitutional; seven laws were modernised; and at least four proposed laws were withdrawn. In addition, six countries saw precedent-setting cases limiting the overly broad application of the law through the use of up-to-date science.

Screenshot 2019-05-29 at 10.29.06The solution

Progress against HIV criminalisation is the result of sustained advocacy using a wide range of strategies. These include:

  • Building the evidence base Research-based evidence has proven vital to advocacy against HIV criminalisation. In particular, social science research has been used to challenge damaging myths and to identify who is being prosecuted, in order to help build local and regional advocacy movements.
  • Ensuring the voices of survivors are heard HIV criminalisation advocacy means ensuring that HIV criminalisation survivors are welcomed and supported as advocates and decision-makers at all stages of the movement to end HIV criminalisation.
  • Training to build capacity Successful strategies have focused on grassroots activists, recognising that training events must be community owned and provide opportunities for diverse community members to come together, hold discussions, set agendas, and build more inclusive coalitions and communities of action.
  • Using PLHIV-led research to build community engagement capacity Research led by people living with HIV (PLHIV) provides a mechanism to engage communities to develop in-depth understanding of issues and build relationships, mobilise and organise.

cof

  • Using science for justice HIV criminalisation is often based on outdated and/or inaccurate information exaggerating potential harms of HIV infection. In addition, HIV-related prosecutions frequently involve cases where no harm was intended; where HIV transmission did not occur, was not possible or was extremely unlikely; and where transmission was neither alleged nor proven beyond a reasonable doubt.
  • Engaging decision-makers through formal processes Activists have worked to bring about legal and policy changes not only by lobbying local decision-makers, but also by engaging in other formal processes including using international mechanisms to bring HIV criminalisation issues to the attention of state or national decision-makers.
  • Acting locally and growing capacity through networks Many community organisations working to limit HIV criminalisation are actively supporting grassroots community advocates’ participation at the decision-making table.
  • Getting the word out and engaging with media Activists have employed diverse strategies to extend the reach of advocacy against HIV criminalisation including pushing the issue onto conference agendas, presenting messaging through video, working through digital media forums, using public exhibitions to push campaign messaging, and holding public demonstrations. Sensationalist headlines and misreporting of HIV-related prosecutions remain a major issue, perpetuating HIV stigma while misrepresenting the facts. Activists are endeavouring to interrupt this pattern of salacious reporting, working to improve media by pushing alternative, factual narratives and asking journalists to accurately report HIV-related cases with care.

Acknowlegements

Advancing HIV Justice 3 was written on behalf of HIV JUSTICE WORLDWIDE by the HIV Justice Network’s Senior Policy Analyst, Sally Cameron, with the exception of the Global overview, which was written by HIV Justice Network’s Global Co-ordinator, Edwin J Bernard, who also edited the report.

We would especially like to acknowledge the courage and commitment of the growing number of advocates around the world who are challenging laws, policies and practices that inappropriately regulate and punish people living with HIV. Without them, this report would not have been possible.

rcnf 346x228We gratefully acknowledge the financial contribution of the Robert Carr Fund to this report.

A note about the limitations of the data

The data and case analyses in this report cover a 39-month period, 1 October 2015 to 31 December 2018. This begins where the second Advancing HIV Justice report – which covered a 30-month period, 1 April 2013 to 30 September 2015 – left off. Our data should be seen as an illustration of what may be a more widespread, but generally undocumented, use of the criminal law against people with HIV.

Similarly, despite the growing movement of advocates and organisations working on HIV criminalisation, it is not possible to document every piece of advocacy, some of which takes place behind the scenes and is therefore not publicly communicated.

Despite our growing global reach we may still not be connected with everyone who is working to end HIV criminalisation, and if we have missed you or your work, we apologise and hope that you will join the movement (visit: www.hivjusticeworldwide.org/en/join-the-movement) so we can be in touch and you can share information about your successes and challenges.

Consequently, this report can only represent the tip of the iceberg: each piece of information a brief synopsis of the countless hours and many processes that individuals, organisations, networks, and agencies have dedicated to advocacy for HIV justice.

Suggested citation: Sally Cameron and Edwin J Bernard. Advancing HIV Justice 3: Growing the global movement against HIV criminalisation. HIV Justice Network, Amsterdam, May 2019.