US: PWN-USA gives an overview of HIV criminalisation and its impacts

HIV Criminalization: A Concept That Has to Be Talked About

by Emili Ema Sedlar

The topic of HIV is an issue many people are uneducated in, especially when bringing up different complex fragments that are connected with HIV and how they influence the lives of people living with HIV.  Unfortunately, most people today lack knowledge, understanding and curiosity in the basic information on HIV, thus many don’t know how understand how laws and policies impact people living with HIV. This is where the issue of HIV criminalization comes in–a topic that many, unfortunately, don’t think about these days, since many don’t know it exists or do not understand its impacts. But it has become one of the most crucial issues for HIV/AIDS activists today.

According to the Center for HIV Law and Policy, in 36 US states, people living with HIV have been arrested, accused and prosecuted against for having consensual sex, biting and spitting. In addition to this, since 2008, there have been more than 260 cases reported of HIV criminalization under states in which there are HIV specific laws and in states where there were broad terms for bodily fluids or sex work. Because of these gruesome and unjust laws, people living with HIV are a specific target, living in fear and stigmatized for their status. Also, many people are illiterate about these prejudiced laws, which break the basic principles of human rights and instead of asking questions; many ignore the issue of HIV criminalization that is present in their country. This kind of mentality has to be stop, and an open educational and informational dialogue has to begin.

Unfairness in the justice system

Monique Howell is a veteran who served in the US army. She is now a stay-at-home mom of three boys and a motivational speaker. “I have been criminalized for living with HIV for nondisclosure by having unprotected sex with another soldier. I was put on trial. The other soldier did not get the virus,” Howell explained.

Furthermore, Howell described that if convicted, she was looking at 8 to 12 years. “They moved me out of my house and into a single soldier barracks where I was monitored day in and out while on trial. They ended up dropping all my charges and released me out the military,” Howell further illustrated.

Howell knows many others fighting today against HIV criminalization and pointed out how this is a long, challenging road to bringing justice to many today who are accused of criminal acts for living normal lives with HIV. “The SERO Project has been working countless hours trying to make these laws accurate and up to date. Not only the SERO Project, but others have started campaigns and partner up, including PWN-USA with the SERO Project, to come together with ideas on how we can continue to head in the right direction with HIV criminalization,” she finally added.

Hope to Educate About HIV Criminalization

Toward the end of the conversation, Howell depicted how she still has hope of creating a society in which people will be educated about HIV and changing the laws that stigmatize and create fears for those living with HIV. “My hopes is that we are treated fairly and not treated based off society’s ignorance. We must educate one another.”

Ken Pinkela was in the US army for 29 years. He is currently working with the SERO Project as the Military Policy Director and runs communications/social media for the project. Pinkela was falsely accused and prosecuted for HIV exposure by an Army Lieutenant. “With no investigation or evidence of any kind (physical or medical), I was courtmartialed and convicted of then an aggrevated assault (which was later dropped to assault and battery via an important US Air Force HIV case).”

The US military does not have authorization nor do they have a congressinally authorized charge related to anything HIV, Pinkela revealed. Pinkela emphasized how he has received unfair and unjust treatment from the Army, in which he was stopped from being deployed and having overseas assignments. Even though there has been slow progress in the military, the changes have still been valuable; one of them is the US Air Force case, “US vs. Gutierrez,” in which the court has recognized the benefits of advanced medicine and science. However, even though this kind of recognition exists, there are issues that still negatively impact service members who are HIV positive.

“HIV positive service members are singled out and given an order that is known as the Safe Sex Order, which threatens that any sexual contact with or without a condom is subject to prosecution, even if the service member discloses their HIV status,” clarified Pinkela.

Moreover, Pinkela illustrated how service memebers living with HIV are seen as sexual deviants; thus there is a big gap between those who are HIV negative and those who are positive. In the end, Pinkela described how he hopes that the HIV Discrimination Act will be passed. Just this year in March, the bill (HR 1739) was re-introduced in the US House of Representatives.

Perspectives from advocates and activists

In the last couple of years, there has been significant progress and work into modernizing HIV specific laws. For example, in 2016, Colorado modernized their STI codes, which included the repeal of HIV specific status. Their coalition effort was spearheaded by Positive Women’s Network – USA Colorado.

In 2014, Iowa modernized their HIV specific laws. Tami Haught is one of the activists who helped change those laws, where she led community forums to educate communities, lobby legislators and organized CHAINS’s state lobby day. This kind of initiative started way back in 2004 and was active in 2009, when many activists and advocates gathered and realized they needed to bring a change.

Currently, Haught is the SERO Project’s Organizing and Training Coordination and is helping and supporting different states to modernizes their HIV specific status. Haught explained that one of the greatest issues of HIV criminalization is the lack of knowledge about this problematic issue. “People living with HIV are generally aware of these laws. The general public is very unaware about basic HIV facts. People are still unaware of how HIV is transmitted so a lot of misinformation is still available to people.”

Haught described that with HIV criminalization can come another horrific factor that deeply impacts a person’s life: sex offender registration. One of the worst case scenarios of an HIV criminalization case came from Iowa. “One-time sexual encounter, protection was used, person living with HIV was medically adherent ad virally suppressed, so there was no exposure to HIV–zero risk of harm. However, Iowa’s law was a disclosure law, the person living with HIV was unable to prove disclosure, so he was charged, convicted, and sentenced to 25 years of jail and lifetime sex offender status. This was consensual sex between two adults,” explained Haught.

However, the judge reconsidered his case and he was released from prison. Once the law was modernized in 2014, people accused of HIV criminalization were removed from the sex offender registry list.

Everyone matters to us

Haught explained how today, the SERO Project is doing everything they can to help not only modernize the laws, but to help people  impacted by HIV criminalization laws. They have their own Survivor’s Network which offers different programs to support those who need the most. “Cindy Stine communicates with people and runs the Christmas Card project to send greeting to people currently incarcerated to let them know they matter and are not forgotten, offering hope and hopefully comfort to a group of people other would ignore or throw away. Everyone matters to us,” said Haught.

Kamaria Laffrey is currently fighting against HIV criminalization as the Florida Community Organizer for The SERO Project. Laffrey mentioned how more and more people today are aware of the problematic issue of HIV criminalization, since there are many networks collaborating together in the fight against HIV criminalization. “The SERO Project, PWN, The Center for HIV Law & Policy, HIV Justice Worldwide and many others are instrumental in building skills for advocates to go into their communities and educate other people living with HIV, public health experts, legislators, law enforcement entities, and even trauma center response facilities,” explained Laffrey.

However, Laffrey also revealed the situation in Florida when it comes to HIV criminalization. “The laws in Florida were passed in 1986. Between the years of 1988-2016, Florida has convicted 99 people under HIV criminalization laws. These laws differ by region, demonstrating differences in behavior, prosecutor attitudes or local political culture. Of those 99 cases, 53 of them were women. As of 2014, women accounted for 28% of all people living with HIV; however made up 54% of those convicted under the laws,” explained Laffrey.

A future to collaborate with different activists

Laffrey’s future plan is to help out people that are victims of HIV criminalization; she will organize and collaborate with different networks working to eradicate HIV criminalization laws. “I personally plan to continue to conduct the workshop Be the Change You Seek: Engaging in a Resistant Community to challenge people to understand that the vagueness of our laws is intentional, and that we don’t have to accept them just because they are on the books when they are used to wrongfully prosecute a group of people,” explained Laffrey.

In the same way, one of her greatest hopes for other activists and advocates is to fight for education, so that people will become more aware and conscious about the unfairness of HIV criminalization laws and the way they impact people’s lives. That way, people will be able to fight together to change these outdated, discriminatory laws.

Africa: Moving towards revolutionising approaches to HIV criminalisation

“We have all agreed with the Sustainable Development Goal of ending HIV and Tuberculosis by 2030. We cannot get there while we are arresting the same people we are supposed to ensure are accessing treatment and living positively,” said Dr Ruth Labode, a member of Parliament from Zimbabwe opening remarks at a two-day global meeting co-hosted by the AIDS and Rights Alliance for Southern Africa (ARASA) and HIV Justice Worldwide (HJWW) on 24 and 25 April 2017 in Johannesburg, South Africa, which focused on “Revolutionising approaches to Criminalisation of HIV Non-disclosure, Exposure and Transmission”.

The meeting was attended by advocates, civil society organisations, lawyers, judges, national human rights institutions and Members of Parliament from all over Africa and with some delegates from North America. Central to these deliberations was the draconian provisions within numerous HIV-specific laws being developed as government responses to the prevention and control of the HIV epidemic. The good intentions inherent in these pieces of legislation are often marred with provisions, which criminalise people based on their HIV status. Punitive provisions relating to ‘compulsory testing’, ‘involuntary partner notification’, ‘non-disclosure’ and ‘transmission’ of HIV are often cited, fueling stigma against people living with HIV.

The common theme binding these deliberations, was the negative impact of HIV criminalisation and the stories that were shared by colleagues.  The increasing trend of imposing criminal sanctions against people living with HIV, had resulted in adverse impact on public health outcomes for certain populations, especially women. While reinforcing stigma, HIV criminalisation impedes access to sexual and reproductive health services such as condoms, HIV testing and treatment. Further, HIV criminalisation discourages HIV-positive women from accessing ante-natal care, which leads to increased maternal and child mortality. The overly broad and vague nature of most HIV specific laws, accompanied by the imposition of criminal sanctions without empirical or scientific support, further underpins the rift between public health goals and the protection of human rights.

Representing the AIDS Legal Network, one of the partners who led the development of the 10 Reasons Why Criminalisation Harms Women, Johanna Kehler mentioned the fact that, “HIV criminalisation and HIV specific laws are often set against a social milieu that is patriarchal, heteronormative and perpetuates gender inequalities and utilises punitive approaches to “correct” imbalances.” She went on to add that these laws ultimately maintain and widen the divide between public health needs and human rights obligations.

Laurel 1“Most prosecutions globally involve no or negligible risk of transmission. Among the thousands of known prosecutions, cases where it was clear, much less proven beyond reasonable doubt, that an individual planned on or wanted to infect another person with HIV, are exceedingly rare. People are being convicted of crimes contrary to the best public health advice, but also contrary to scientific and medical evidence”, said Dr Laurel Sprague of the HIV Justice Network, who has since become the Executive Director of the Global Network of People Living with HIV (GNP+).

During the meeting, various organisations shared their experiences around litigating these matters and community advocacy mounted to reform problematic laws or specific draconian provisions. Cases from Zimbabwe, Nigeria and Niger showcased that challenges were experiences in most contexts.

The Uganda Network on Law, Ethics & HIV/AIDS (UGANET), together with other advocates and activists, continue to challenge the Ugandan law and constitutionality of the criminalisation provisions contained in the HIV Prevention and Control Act of 2014. The Southern Africa Litigation Centre (SALC) spoke to the extensive work that they furthered in Malawi, which included a focus on arbitrary arrests and dentition. Malawi has taken the centre stage where HIV criminalisation is concerned, as they are currently in the process of tabling a decade-old Draft HIV and AIDS (Prevention and Management) Bill, which contains draconian provisions around HIV criminalisation.

Amplifying the voice of survivors of HIV criminalisation, the meeting was privileged to engage with Kerry Thomas via telephone from a state correctional facility in Boise, Idaho in the United States of America. Mr Thomas, who was prosecuted for HIV non-disclosure and the sentence that he is serving, reinforced the unjust nature of these laws. Mr Thomas is currently serving his eighth year out of a 30-year sentence for non- disclosure to his ex-partner, despite there being no proof of transmission and the fact that he had consensual and protected sex. His appeal on the unconstitutionality of Idaho’s non-disclosure law, was overturned in the District courts in 2016.

The meeting concluded with very strong calls for everyone to joining the global HIV JUSTICE WORLDWIDE movement and organisations committed to utilise their existing resources to galvanise advocacy focusing on ending HIV criminalisation.

Participants agreed that there was a need to focus on the inter-sectionalities within the HIV criminalisation discourse, as well as a need for coordination and collaboration amongst legislators, members of the judiciary, parliamentarians, health care workers and civil society organisations to further advocacy related to this issue.

The participants also agreed that transformative approaches to HIV criminalisation, require both legal and social reforms, such as sensitisation of community members and the media. ARASA has committed to working with colleagues in developing a timeline of key events and advocacy opportunities, at which colleagues could participate.

Revolutionising approaches to Criminalisation of HIV Non-disclosure, Exposure and Transmission was supported by a grant from the Robert Carr civil society networks Fund.

Since its inception, ARASA has played an active role in addressing HIV criminalisation in the region and globally. ARASA has strengthened the capacity of civil society on the issue and supported partners to work with the media, parliamentarians, members of the judiciary and lawyers to address HIV criminalisation.

To read more about the meeting, follow #Decrim4Health on Facebook and Twitter. You can also view a gallery of photos taken during the meeting here.

South Korea: Women living with HIV reluctant to report sexual assault, because of prejudices against people with HIV in the legal system and HIV criminalisation law

Discrimination against people with HIV rampant: UN study

Korean people with HIV still face rampant discrimination, over 30 years since the first case was discovered here, a study released Thursday by UNAIDS has found.

According to initial findings from the People Living With HIV Stigma Index in South Korea, 37 percent of respondents reported suicidal thoughts, and a similar proportion had cut themselves off from family and friends.

In addition, 71 percent of people with HIV said they had been insulted or threatened because of their status.

Although almost all respondents said they were receiving anti-retroviral treatment for HIV, 70 percent said they had still avoided going to a clinic when it was needed.

The economic difficulties faced by respondents were also serious. Although most were college educated and around two-thirds were aged between 30 and 50, only 37 percent were employed full-time.

Less than 1 in 10 full-time workers had told their employees they had HIV and more than half of respondents said they had quit school or work because of their HIV status.

A separate report released by the National Human Rights Commission on Wednesday found 91 percent of people with HIV said they faced discrimination at work and 83 percent were discriminated against at school.

Asked about sources of negative attitudes, the UNAIDS report found media to be no better than general internet comments, with both cited by three-quarters as a source of negative views toward people with HIV. Religious groups were cited by 64 percent.

Citing a lack of funding and government support, the authors of the report conceded the limitations of the survey due to small sample size, noting particularly that women were not properly represented. Just one woman with HIV was surveyed, partly because only 7.6 percent of people with HIV are women and there is a lack of networks for them.

Kwon Mi-ran, a consultant for Korean Network for People living with HIV/AIDS (KNP+), which conducted the research with UNAIDS’ support, said more research was required into women with HIV, who faced some specific issues.

“Women with HIV face serious stigma and the government’s policies have nothing that addresses women with HIV specifically,” she said. “There are no communities for women to share their experiences and support each other and they are isolated.”

Kwon said it was more difficult for women to report sexual assault, partly because of the attitudes of people in the legal system toward people with HIV and partly because of a law that criminalizes acts that can spread the virus.

Another growing form of discrimination against people with HIV was that nursing homes were refusing to accept them as an increasing number reached old age.

“Antiretroviral treatment is widely available in South Korea, and so most people living with HIV can keep their health. But when they need long-term care because of old age or other HIV-related diseases, there is no place they can go,” said Seo Bo-kyung of KNP+.

Only 27 percent said they were confident their medical records would be kept private and 17 percent said doctors had disclosed their HIV status to other people without permission.

Despite UNAIDS and World Health Organization recommendations to avoid testing without informed consent, the majority of respondents found they had HIV after being tested without their knowledge.

The NHRC report also found discrimination in health care, with 26 percent saying treatment had been refused, and a similar number saying their status was indicated on their bedside charts.

“Health care settings should be stigma-free environments to ensure people living with HIV not only stay healthy, but their loved ones and community are also protected from HIV,” Steve Kraus, director of the UNAIDS Regional Support Team for Asia and the Pacific, said in a news release accompanying the report. “It is imperative that we have protective laws and empowered communities.”

The report recommends consideration of HIV as a disability to bring it under existing discrimination protections, and for a comprehensive discrimination law. It also calls for NGOs to work with the government.

The respondents’ most favored policy is public education on HIV, but Seo Bo-kyung of KNP+ stressed that the quality of that education was important.

“In many cases, HIV education is conveyed as a means to deliver homophobic messages and tends to describe people living with HIV as pathogens, and not as humans,” he said. “That is the reason that we emphasize a human rights-centered approach.”

By Paul Kerry (paulkerry@heraldcorp.com)

UK: Yusef Azad of the National AIDS Trust calls for an end to HIV being used in court to emphasise the seriousness of a crime when it has no relevance to it

20th June 2017

Last month newspapers reported the trial and conviction of a man who had gone berserk in a Manchester hotel, during which he both caused criminal damage and bit a police officer who had been called to the scene to restrain him.  Deplorable of course, though sadly not that uncommon an event.  But there was a twist to this story, fastened on in newspaper headlines:

“‘Vile coward’ salesman with HIV deliberately BIT family man copper in shock hotel assault”

The man has HIV and his name and identity were disclosed in the media.  His HIV positive status is now permanently in the public domain for anyone who ever feels like googling him.  His HIV positive status was brought up in court by the prosecuting lawyer, ‘[The police officer] had a bite mark on his arm, which didn’t pierce the skin … As it was found that the defendant is HIV positive then more tests had to be taken by the police officer’.

A bite which does not pierce the skin caries absolutely zero risk of HIV – why does the CPS allow a prosecutor to claim that tests were necessary?  This is simply untrue and misleads the court.  But the alleged need for such tests and the implicit risk of HIV transmission is used to emphasise the trauma of the victim and the seriousness of the offence – it is meant to have an impact on the severity of sentence.  A man’s HIV status has been revealed publicly and permanently, and quite possibly had an impact on his sentence, even though his HIV had absolutely no relevance to the crime for which he was convicted.  This is not just prosecution, it is persecution on the basis of HIV status by police and prosecutors.

And unfortunately it is not a one-off but something NAT witnesses repeatedly as we monitor press reports on HIV in the UK.  With some regularity we come across news articles of cases where people have their HIV status raised publicly in court even though it has no bearing on the offence.  They are usually assaults of varying degrees of seriousness and the HIV status of the accused is claimed as a reason for the victim to have an HIV test, or take PEP, with great stress on the anxiety and trauma of worrying about possible HIV transmission.  Needless to say in no instance, following such assaults, has the victim actually acquired HIV as a result.

That is not surprising given, for a start, that well over 90% of people diagnosed with HIV are on effective treatment and incapable of transmitting HIV to others.  But the courts seem to take no account of treatment as prevention.  Nor do they seem to understand how HIV is and is not transmitted.  HIV is raised in cases of spitting, biting and scratching where HIV could not have been passed on.  As in this recent Manchester case, the HIV status of defendants are put in the public domain and their sentences often affected without justification.

Should we feel sorry for convicted criminals? Some might say they had it coming and they deserve justice.  Absolutely, justice is essential.  But this isn’t it.  Everyone has the right to be treated equally before the law but at the moment people with HIV are being treated worse than those who are HIV negative and guilty of the same offences.

What about the victims?  There is now an expectation that the impact on the victim of a crime is taken into account by the court.  That is understandable and right – but what happens when the fear of HIV is wholly without foundation and a result simply of stigma or ignorance.  What happens when a victim insists on an HIV test or PEP despite clear clinical advice that it is unnecessary and they are not at risk of HIV?  Taking account of fear and anxiety in such circumstances is for the courts simply to endorse and propagate HIV misinformation and prejudice. The harm of these cases goes beyond that to the defendant.  Everyone with HIV is harmed by newspaper accounts of trials which faithfully report the inaccurate fears of HIV transmission raised in court and which increase HIV stigma as a result.

Nor does this do any favours to the victims who are just reinforced in their trauma and misunderstanding of how HIV is passed on.

These cases remind me of the old ‘Gay Panic’ defence where people charged with attacking gay men would claim their actions were an instinctive immediate response to a gay man coming on to them.  A completely natural, if regrettable, reaction from a red-blooded male.  Happily, the CPS would now give short shrift to such a defence if raised in court.  But instead they irresponsibly play with an equally discreditable HIV-version in prosecuting crimes.  We might call it the ‘HIV panic’ attack, where, despite all the evidence and science showing that HIV has no relevance to the crime, they nevertheless encourage the ‘HIV panic’ of the victim to be raised in court as part of their case for the culpability of the accused.

This has to stop.  The police, CPS and the courts are failing in their Public Sector Equality Duty and are guilty of discrimination.  We call on the CPS to meet us and discuss how this injustice can be brought to an end as soon as possible.

Published by the National AIDS Trust on June 20, 2017

Canada: People of African, Caribbean and black descent over-represented in the mainstream media coverage of HIV non-disclosure.

Skewed Stories: Race and HIV Criminalization in the Media

By Sané Dube

From Canadian AIDS Treatment Information Exchange

June 12, 2017

In Canada, not disclosing your HIV status to a sex partner can, in some circumstances, be deemed a crime. Media stories of people prosecuted for not disclosing their status show black men on trial in disproportionate numbers. What impact does this have on African, Caribbean and black communities?

“In a word, it’s dehumanizing.” Robert Bardston is talking about media coverage of HIV non-disclosure cases. I’ve spent the past couple of months engaged in a series of poignant, inspiring and sometimes-heartbreaking conversations about the criminalization of HIV non-disclosure. I am trying to understand how mainstream media stories on the issue impact African, Caribbean and black (ACB) people across the country. Robert and I are speaking on the phone — miles stretch between his Medicine Hat and my Toronto. It’s early and the sleep is still working its way out of his voice.

He lets out a weighty sigh and continues: “It’s dehumanizing to see yourself branded as deviant in the public eye, especially through the media.” Robert, an HIV activist and co-chair of the Canadian HIV/AIDS Black, African and Caribbean Network (CHABAC), has lived with the virus since 1988.

In an illuminating conversation, we explore what it feels like to see and hear stories of people criminalized for not disclosing their HIV status before sex. We cycle through the emotional toll the coverage can take and the complicated feelings it evokes. Robert says that people living with HIV are treated as pariahs and that black people living with HIV face both HIV stigma and debilitating racism in how their stories are told.

Throughout our conversation he juxtaposes two key elements of his identity — his status as a person living with HIV and his identity as a black person in Canada. As Robert points out, African, Caribbean and black people living with HIV have pressing and unique concerns regarding the criminalization of HIV non-disclosure. To fully understand how deeply this issue impacts individuals and communities, we must first understand what it means to inhabit both of these spaces. To understand this moment in time, we must look at it in context.

The first cases of people being charged for not disclosing their HIV status to sex partners date back to the late 1980s. Since 1989, more than 180 HIV-positive people have been prosecuted in Canada for not disclosing their status. A sharp rise in the number of cases, which began in 2004, has been accompanied by increasing severity in the type of criminal charges laid at the feet of people living with HIV.

Today, someone facing prosecution typically faces an aggravated sexual assault charge — a serious criminal charge with potentially grave consequences. If convicted, a person can be added to the sex-offenders registry and face a sentence of up to life in prison. In cases where the accused has immigrated to Canada, they may also face deportation.

In all of my conversations, the year 2012 pops up as a recurring focal point. That year the Supreme Court of Canada released decisions on two highly anticipated cases. The Court had been asked to clarify the conditions under which people living with HIV could face criminal prosecution for not disclosing their HIV status to sex partners. Legal obligations to disclose one’s status had already been in effect since the late ’80s, but in 2012 the court was asked to determine how using a condom or having a low viral load could impact criminal liability in cases of HIV non-disclosure.

By 2012 the global HIV epidemic was entering its third decade. Tremendous gains had been made in better understanding the biology of HIV transmission and advocates hoped that the highest court in Canada would seize this opportunity to integrate the latest scientific evidence on HIV transmission risks — showing that condoms and maintaining a low viral load significantly cut the risk — into legal processes. In a 1998 decision the Court had ruled that people living with HIV had a legal duty to disclose their status before having sex that might pose a “significant risk” of transmission. The court’s definition of “significant risk,” however, was vague and unclear, and advocates hoped that the 2012 ruling would bring greater clarity to the law.

Instead, the law became stricter. People living with HIV were now required to disclose their status before sex that posed a “realistic possibility” of HIV transmission. The problem was that sex posing a realistic possibility included situations where there is effectively zero risk. Critics called the decision a step back that diminished the rights of people living with HIV.

While the cases were being deliberated in the highest court in the land, they were also being dissected in the court of public opinion. One case involved a black man accused of failing to disclose his HIV-positive status to several sex partners. Although HIV was never transmitted to any of his partners, he was charged with six counts of aggravated sexual assault.

By the time the Supreme Court issued its landmark ruling, dangerous and harmful ways of talking about HIV and, in particular, African, Caribbean and black men living with HIV had become the norm. Some of the most discussed cases of that period involved black men; the result was a disturbing fusion of blackness and criminal deviance.

Looking back, people living with HIV and advocates describe popular coverage of criminalization cases during that era as uniformly poor, increasing stigma and undermining education and knowledge about the science of HIV. The coverage not only normalized language that framed people living with HIV as inherently deceptive and dangerous to the public, the disproportionate focus on people of African, Caribbean and black descent, particularly straight black men, told a singular, dangerous story.

The fusion of black identity and negative stereotypes is not new. Indeed, it is something black people and communities contend with daily. In another illuminating conversation, Shannon Ryan, the executive director of Black CAP (Black Coalition for AIDS Prevention), who has worked in HIV organizations for two decades, tells me, “Being black in Canada means something. Systemically and institutionally, it means something — whether you stepped off a plane this morning or your family has been here since the 1700s. I try to remind the people I work with that our blackness is something to celebrate and includes strength and solidarity. But in the world outside these doors, being black can also include facing anti-black racism, it means marginalization, it means oppression and vulnerability.” Contemporary narratives about the criminalization of black people who don’t disclose their HIV status draw from and feed into these problematic and stifling conceptions.

Equally stifling is the criminalization that black communities must contend with in the first place. Black people are vastly over-represented in Canada’s prisons. A 2015 report from the Office of the Correctional Investigator found that the federal incarceration rate for African, Caribbean and black people in Canada is three times their representation rate in the general population.

“The criminalization of HIV non-disclosure is another way our communities are being criminalized and torn apart,” says Ciann Wilson, an assistant professor at Wilfred Laurier University who has worked with African, Caribbean, black and Indigenous communities responding to HIV. “HIV follows lines of existing inequity and the criminalization of people living with HIV further disenfranchises communities that are already dealing with structural racism.”

There’s an old adage that we understand the world around us by the stories we tell about it. A team of Ontario researchers analyzed 1,680 Canadian newspaper articles about HIV non-disclosure criminalization cases that were published between 1989 and 2015. They found that 62 percent of the stories focused on cases involving black immigrant defendants, yet only 20 percent of the 181 people charged during the same period were African, Caribbean or black men. The research team concluded that the media disproportionately focuses on cases involving black people facing prosecution for non-disclosure.

“There’s no question about it: Straight black men in particular are over-represented in the media coverage of these cases,” says sociologist Eric Mykhalovskiy, one member of the research team. “If you take a closer look at the coverage, half of the 1,680 articles focused on four black men facing prosecution. The fact that the coverage is so skewed toward those defendants really produces in the public imagination the idea that HIV non-disclosure is a crime of black heterosexual men — when it’s not,” he says. “It’s a profound example of what is clearly a long history of over-representing black people in crime stories in the media.” [To read the full report, Callous, Cold and Deliberately Duplicitous: Racialization, Immigration and the Representation of HIV Criminalization in Canadian Mainstream Newspapers, click here.]

The storytelling pattern Mykhalovskiy references traces back to some of the first HIV non-disclosure cases involving African, Caribbean and black men in Canada. Early media reports drew from racialized stereotypes about black men, masculinity and gender. They conjured images of hyper-sexualized black men maliciously transmitting HIV to unsuspecting partners — usually white and female. News headlines frequently described defendants as “predators” while making reference to “potent” African strains of HIV.

The same patterns emerge in contemporary mainstream coverage of HIV non-disclosure cases involving ACB individuals. “Many people may not personally know someone who is HIV positive. They know about HIV through the media,” Mykhalovskiy says. “When you look at the stories that are told, you see that the kind of knowledge that’s available paints black people living with HIV as a significant threat and danger. It’s really concerning.”

The effects are far reaching. HIV is a pressing concern for many African, Caribbean and black communities across the country and these problematic narratives impact the ways in which communities and individuals experience and respond to HIV.

Take, for example, Linda, who has had HIV since 2003. She currently lives in B.C., where she’s been working with groups supporting black people living with HIV in that province. Linda is a force to reckon with. She is a quiet revolution who resists the oversimplification of the lives of people living with HIV. Yet it’s impossible to miss the fatigue that clouds her voice when she talks about the impact of HIV non-disclosure media stories on the lives of people with HIV.

“The ways they talk about us in the media — it makes you feel worthless. It’s a huge problem for us African people living with HIV. We talk amongst ourselves and we are scared.” She continues after a measured pause: “I think it’s cruel. It’s only expanding the stigma. It’s pushing people away instead of encouraging people with HIV to come forward and talk about stigma.”

Increasing stigma and isolation are top concerns for service providers at HIV organizations, too. These organizations work to disrupt the problematic stories told in the popular press about HIV and the criminalization of non-disclosure. They have been working diligently to shift the conversation and advocate for laws that don’t further marginalize people living with HIV. They argue that stigma is a major barrier in effective responses to HIV.

Two such organizations — Black CAP and the African and Caribbean Council on HIV/AIDS in Ontario (ACCHO) — are located in an inconspicuous office building in downtown Toronto. I’m delivered to the fourth floor of the building by a shaky elevator reminiscent of an earlier time. Stepping into the waiting area I am aware of the unique place in the Canadian conscience and HIV service organization landscape held by agencies like Black CAP and ACCHO.

African, Caribbean and black people make up less than 3 percent of Canada’s population, yet they account for 14 percent of HIV infections. Here again, African, Caribbean and black communities are over-represented and disproportionately impacted. Despite these telling demographics, organizations like Black CAP and ACCHO, which both work specifically with and for ACB communities, are few, far between and often crippled by limited funding.

The situation creates a paradox — one where ACB communities are over-represented among people living with HIV and where the public imagination creates strong links between blackness and HIV — yet interventions that cater specifically to ACB communities are limited. HIV in ACB communities is simultaneously hyper-visible and erased in the same breath.

ACCHO director Valérie Pierre-Pierre begins our conversation by reflecting on the coverage of HIV criminalization cases. “Even though high-profile cases don’t necessarily represent the majority of cases, the media covers those cases in ways that further demonize the accused. They elicit negative reactions toward people living with HIV, especially black men.” She is referring to narratives that frame people living with HIV as maliciously transmitting the virus to unsuspecting partners. She and others in HIV service organizations argue that these portrayals have driven misinformation and stigma — which fuel fear and, in turn, create barriers to addressing HIV in ACB communities.

Black CAP executive director Shannon Ryan, reflecting on the aftermath of the Supreme Court rulings and the media coverage, says, “It does not help us do our work. It does not promote testing. It does not promote diagnosis. It does not promote disclosure. It does not reduce stigma. It diminishes our work.”

While proponents of the current law argue that it helps prevent HIV (that the fear of prosecution will make people living with HIV take precautions with their sex partners), many people living with HIV and many working in the field argue that the criminalization of non-disclosure and the discourses around it become marginalizing forces. In African, Caribbean and black communities, this can have a particularly damaging and splintering effect.

Months after my first call with Robert Bardston and many conversations later, I have talked to people living with HIV, service providers, legal experts and researchers about the impact of HIV non-disclosure criminalization on African, Caribbean and black communities and the stories we tell about it. To be sure, this is a difficult and divisive issue. Yet in the midst of it all, there are extraordinary individuals and groups resisting and challenging harmful narratives about these communities and criminalization.

They are claiming space and demanding this story be told a different way. They want the story to begin with an acknowledgment that structural violence and marginalizing narratives about African, Caribbean and black communities drive increasing rates of HIV and, indeed, criminalization. Many also want to make it clear that the current system does not serve already-vulnerable communities.

Listening to their stories of resistance, I allow myself to start imagining and dreaming about a system that better serves our communities.

For more on the criminalization of HIV non-disclosure, visit the Canadian HIV/AIDS Legal Network‘s website.

Sané Dube is a Zimbabwean transplant to Canada. She lives in Toronto.

Canada: Two staff members of the Canadian HIV/AIDS Legal Network discuss how the 'Undetectable = Untransmittable' campaign might best be understood to impact HIV criminalisation advocacy

U=U and the overly-broad criminalization of HIV nondisclosure

Published on CATIE’s blog on 06/06/2017

By Nicholas Caivano and Sandra Ka Hon Chu

People living with HIV in Canada have been charged with some of the most serious offences in the Criminal Code, even in cases of consensual sex where there was negligible or no risk of HIV transmission, no actual transmission and no intent to transmit.

The Undetectable=Untransmittable (“U=U”) campaign is based on scientific research, including the ground-breaking PARTNER study, establishing that when a person living with HIV on treatment maintains an undetectable viral load for at least six months, the risk of transmitting the virus through sex is effectively non-existent. As advocates for persons living with HIV await action from federal, provincial and territorial governments to address the overly-broad criminalization of HIV non-disclosure, how might the U=U campaign and the results of the PARTNER study impact ongoing prosecutions under the current state of the law?

Canada has the dubious distinction of being a world “leader,” after Russia and the United States, in prosecuting people living with HIV. In 1998, the Supreme Court of Canada (SCC), in R. v. Cuerrier, decided that people living with HIV have a legal duty to disclose their HIV-positive status to sexual partners before having sex that poses a “significant risk” of HIV transmission.

In 2012, in R. v. Mabior, the SCC ruled that people living with HIV have a legal duty to disclose before having sex that poses a “realistic possibility of HIV transmission,” which the Crown must prove. Commenting specifically in the context of a case involving penile-vaginal sex, the Court stated that “as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used.”

In Canada, people who face criminal charges related to HIV non-disclosure are typically charged with aggravated sexual assault, a criminal offence usually reserved for the most violent rape, on the theory that the absence of disclosure renders a partner’s consent to sex invalid. Despite the requirement of a “realistic possibility” of transmission, charges are being brought, even when people living with HIV engage in conduct that, based on medical evidence, poses a negligible possibility of transmission.

As U=U makes clear, the available information about HIV transmission has changed dramatically since the SCC’s decision in 1998. The results of the PARTNER study add to the mounting pile of evidence available to assist courts in making sure the law is consistent with science and with human rights.

Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

Nicholas Caivano is a lawyer and Policy Analyst at the Canadian HIV/AIDS Legal Network, where he works on human rights issues related to access to harm reduction services and access to medicines, and leads the work on law reform possibilities for HIV criminalization in Canada.

Sandra Ka Hon Chu is the Director of Research and Advocacy at the Canadian HIV/AIDS Legal Network, where she works on HIV-related human rights issues concerning prisons, harm reduction, sex work, women, and immigration.

US: Rolling Stone magazine covers HIV criminalisation and life as a person living with HIV in the US armed forces

What It’s Like to Be HIV Positive in the Military

Soldiers can be prosecuted for having sex, latest medications aren’t widely available – are the armed forces living in the 1980s when it comes to AIDS?

There’s not much to see in Otisville, New York. The town, with a population of just over 1,000 people, looks like an old mining village with white-painted ranch homes tucked behind the terrain’s rolling hills. The town is on the tip of Orange County, about 60 miles northwest of New York City; turn left down I-209 and you’ll pull into New Jersey, turn right and you’re in Pennsylvania.

For Kenneth Pinkela, Otisville dates back four generations with his family. The old Railroad Hotel and Bar off Main Street – one of the town’s three major roads – is the one his grandfather owned.

“Not a lot to look at, but it’s where I was raised. It’s home,” says Pinkela, driving his Ford pickup through the winding streets.

For Pinkela, Otisville is bittersweet. At 50 years old, the former Army lieutenant colonel, who still holds the shape of a weightlifter, is stuck there. He was forced to move back into his parent’s home three years ago after a military court martial had found him guilty of aggravated assault and battery back in 2012.

But Pinkela never bruised up anyone. Instead, he was tried and charged for exposing a younger lieutenant to HIV, though there was no proof of transmission. Pinkela has been HIV positive since 2007 when he was diagnosed right before deployment to Iraq during the surge.

President Jimmy Carter denounced Pinkela’s trial, and advocates argue it was one of the last Don’t Ask Don’t Tell cases the military tried and won. (Pinkela is also openly gay.) He served eight months in prison, lost his home and was dishonorably discharged from the Army.

Otisville was the only place for Pinkela to retreat to – specifically, back to his mother’s house.

Since being home, things have only gotten worse for Pinkela. His relationship with his mother is strained, he hasn’t had sex for years and doesn’t feel safe in public places.

“The post-traumatic stress I suffer now is worse than what I actually experienced in battle,” he says, pointing out a gunshot wound to his face.

Now, with a felony assault charge, Pinkela is having a hard time finding work even at a hardware store. “I was good at what I did. I loved my job. Now I can’t even get a job.”

Pinkela’s case is not unique. Other HIV positive service members interviewed say that serving their country while fighting for access to HIV care or preventative treatments is an uphill battle rife with bureaucracy, old science and misnomers within the Department of Defense on how HIV is transmitted. Much of the problem has to do with education, but both LGBTQ and HIV advocates say the issue is framed within the military’s staunch conservatism around sexual activity – particularly when it comes to gay sex.

The military isn’t alone in their policies; state laws also give prosecutors authority to charge those who have HIV with felony assault, battery and in some cases rape for having unprotected sex. As a result, gay men are facing what they say is an ethos of discrimination by the military against those who have HIV, including barring people from entering the services and hampering deployment to combat zones.

“It’s not a death disease anymore.”

Nationally, HIV transmission rates have gone down as access to medication and education have increased. But since tracking HIV within the armed forces, positive tests have “trended upwards since 2011,” according to the Defense Health Agency’s Medical Surveillance Monthly Report published in 2015. The highest prevalence of HIV is among Army and Navy men, according to the report.

In 1986, roughly five years after the HIV and AIDS epidemic began, the military began testing for HIV during enlistment, and barred anyone who tested positive. By the time the AIDS crisis began to lessen in the mid-1990s, the Army and Navy started testing more regularly. Now, service members are tested every two years, or before deployment.

Medical advocates say that the current two-year testing policy is partially to blame for the increase by creating a false sense of security against sexually transmitted diseases. The Centers for Disease Control suggest testing for HIV every three months for people who are most at risk of getting the virus, such as gay men or black men who have sex with men.

“The military, depending on how you look at it, could be seen as high risk for contracting HIV,” says Matt Rose, policy and advocacy manager with the National Minority AIDS Council in Washington D.C. “The military likes to treat every service member the same, but it makes testing for HIV inefficient.”

Former Cpt. Josh Seefried, the founder of the LGBTQ military group OutServe, said the group identified HIV as a problem within the armed forces nearly a decade ago after anonymously polling members.

“People have this mindset that since you’re tested and you’re in the military, it must be OK to have unprotected sex,” he says. “That obviously leads to more infection rates.”

Such was the case for Brian Ledford, a former Marine who tested positive right before his deployment out of San Diego. He told Rolling Stone he never got tested consistently because of the routine tests offered by the Navy. “I was dumb and should’ve known better, but I just thought, you know, I’m already getting tested so it’ll be fine.”

But a larger problem for the military is the number of civilians who try to enlist and test positive. The Defense Health Agency last year said there was a 26 percent increase of HIV positive civilians trying to sign up for the service.

All of those people, per military policy, were denied enlistment.

A Department of Defense spokesperson told Rolling Stone that the military denies HIV positive enlistees because the need to complete training and serve in the forces “without aggravation of existing medical conditions.”

But gay military groups say the policy is simply thinly-veiled discrimination.

“This policy, just like every other policy that was put in place preventing LGBTQ people from serving, is discriminatory and segments out a finite group of people,” says Matt Thorn, the current executive director of OutServe-SLDN. “Gen. Mattis during his confirmation said he wanted the best of the best to serve. If someone wants to serve their country they should be allowed to serve their country.”

The U.S. is one of the few Western nations left that have a ban on HIV positive enlistees. In Israel, where service is compulsory, their ban was lifted in 2015. In a press conference, Col. Moshe Pinkert of the Israeli Defense Forces said that “medical advancement in the past few years has made it possible for [those tested positive] to serve in the army without risking themselves or their surroundings.”

And as more countries begin to change their attitudes toward HIV and embrace a more inclusive military policy, there is hope that the U.S. might follow suit.

“Lifting the ban on transgender service members and Don’t Ask Don’t Tell was because a lot of other countries had lifted those bans, as well,” says Thorn. “In general, we don’t have a lot of good education awareness within the military on being HIV positive. People are looking back and they’re reflecting back on those initial horrors. But the truth of the matter is that it’s not a death disease anymore.”

Stuck in the 1980s

In July 2007, Pinkela was just about to be deployed out of Fort Hood when he was brought into an office; he was then told the news about his HIV status.

After the shock set in, he returned back to the D.C. area where he was required to sign what is known in the military as a “Safe Sex Order.” The order requires service members to follow strict guidelines on how they approach contact with others due to their diagnosis. If violated, soldiers can face prosecution or discharge.

“That piece of paper was a threat,” says Pinkela. “I couldn’t believe it was something that we did. Even to this day I look back on it and can’t believe that someone thought the order was okay.”

The Safe Sex Orders differ slightly between the military branches, but some of the details are troubling to medical professionals who say it appears as though the military is stuck in the 1980s.

For example, guidelines in the Air Force and Army tell soldiers to keep from sharing toothbrushes or razors. But the science and medical communities have known for decades that HIV can’t survive outside of the human body and needs a direct route to the bloodstream – something razors and toothbrushes can’t provide.

The Navy and Marine guidelines also tell service members to prevent pregnancy, as transmission of HIV between the mother and child may occur. But transmission between mother and child has become exceedingly rare.

“It’s your right to procreate,” says Catherine Hanssens, executive director of the HIV Law and Policy Center. “To effectively say to someone that because you’re HIV positive, even if you inform your partner, you shouldn’t conceive a child raises constitutional issues.”

Since 2012, HIV transmission has had a dramatic turnaround – partially due to preventative treatments that make the virus so hard to contract.

When someone is on HIV medication, they can reach an “undetectable” level of virus in their blood. At that point, transmission of HIV without a condom is nearly impossible, according to studies conducted in 2014 and released last year.

Rolling Stone reached out to the Department of Defense to specify why, given the medical advancement and low transmission rate, Safe Sex Orders were still being issued in their current format. The department defended the orders, saying “It is true that the risk is negligible if… the HIV-infected partner has an undetectable HIV viral load. However, it cannot be said that the risk is truly zero percent.”

If a service member breaks any of these rules, the military can charge them under the Uniform Code of Military Justice with assault, battery, rape or conduct unbecoming of an officer or gentleman.

Though department officials told Rolling Stone that “the Army does not use the [policy] to support adverse action punishable under UCMJ,” Hanssens’ organization currently represents service members who are facing charges as a result of not following their Safe Sex Order.

But military advocates – and even their staunch opponents – have said the U.S. military is just falling in line with other states throughout the country that criminalize HIV transmission and exposure. There are currently 32 states that have laws on the books related to HIV.

“Safe Sex Orders are unfortunately consistent with some laws enacted within certain states,” says Jonathon Rendina, an Assistant Professor at Hunter College at The City University of New York’s Center for HIV and Education Studies and Training. “What the military is doing is no different that what many civilian lawmakers are doing.”

In 2011, California Rep. Barbara Lee introduced a bill that would end HIV criminalization nationwide, though it failed to pass. In 2013, she helped push a line in the National Defense Authorization Act that forced the Department of Defense to review its HIV policies; though, only the Navy made changes to their Safe Sex Order.

“Too often, our brave service members are dismissed – or even prosecuted – because of their status,” Lee tells Rolling Stone in an email. “These shameful policies are based in fear and discrimination, not science or public health.”

Such was the case for Pinkela, who feels that the military has been using HIV as a reason to prosecute and kick out gay men since the legislative repeal of Don’t Ask Don’t Tell in 2010.

“I could not have sex. And even if I had sex and I told somebody, someone in the military could still prosecute me. They have this little piece of paper that lets some bigot and someone who doesn’t understand us, slam us and put us in jail,” he says.

And he’s not alone. Seefried, the retired Air Force captain, says he advises his gay friends – he calls them “brothers” – not to join the military.

“Right after Don’t Ask Don’t Tell was repealed, I came out and I said that gays should join to help change the culture,” Seefried says. “Now, I tell them not to not sign up… I just think that policies are very, very bad and unsafe for gays in the military right now.”

Quality care, for some

Travis Hernandez, a former sergeant in the Army, has been on the drug Truvada for just under two years now. He started using the the once-a-day blue pill while stationed at Ft. Bragg after he learned from a hook up that the drug could prevent HIV transmission by nearly 100 percent.

“A guy I was in the Army with and having sex with told me about it, and I was sexually active so it made sense for me to try it,” Hernandez says, adding how his experience getting the drug through the Army was very positive. “The doctors were really open talking about safe sex and everyone was very nice. I didn’t have any issues getting the drug.”

Hernandez finished his Army service last year and continues to receive Truvada through his veteran health benefits. But his story is not similar to everyone else’s.

The military provides access to Truvada through it’s healthcare provider TriCare, but only for certain individuals. Each military branch makes their own rules for who can get access.

Emails obtained by Rolling Stone between the National Minority AIDS Council and military health officials confirm that there are different protocols for prescribing Truvada between the service branches and its members without any specific reason.

“The military likes to set their own rules, even if it doesn’t always make sense,” says Rose, with the council. “The Army thinks they know what’s best for the Army, and Marines think they know what’s best for the Marines. But they all have different medical requirements that shouldn’t have any dissimilarities.”

In a statement, Military Health officials within the Department of Defense say they are conducting studies on the effectiveness of Truvada in certain situations, such as while on flight status or sea duty, and are also looking into barriers service members faced with access to care across the military branches. Among those barriers, Military Health noted that not every military hospital has infectious disease specialists who would prescribe the drug.

Truvada does not require a prescription from an infectious disease doctor, though. And the different policies, Seefried says, shows the lack of scientific competence within the Department of Defense and the policies they create.

“Navy Pilots, for example, can take Truvada while on the flight line, but Air Force pilots cannot while they are on the flight line,” says Seefried. “These military branches have different chains of command, so they have different policies that all agree on nothing. It’s just disjointed, and not grounded in science.”

Once a prison, now a home

The charges brought against Pinkela are confusing – even to lawyers who have reviewed his case. Hanssens, with the HIV Law and Policy Center, was one of them.

“What happened to him makes no sense,” she said.

Typically, when a prosecutor files charges, certain requirements have to be met. For assault and battery, according to the UCMJ, one of the primary actions has to be an unwanted physical and violent encounter or an action that is likely to cause death. There are no statutes that label the virus as a determinant for the charge.

Despite there not being an authorization on the books, scores of HIV positive service members like Pinkela have been brought before a court martial with felony assault and battery charges.

Pinkela’s case had gone through six prosecutors who thought the case was too weak before one finally picked it up, according to Pinkela.

And Pinkela’s court martial testimonies are even more bizarre: the soldier never said Pinkela and he had sex, nor did he ever say that Pinkela was the one who transmitted the virus to him. Instead, the evidence came down to an anal douche that may have been used and could’ve exposed the young soldier to HIV.

Not possible, says Rendina, the investigator from the City University of New York.

“Like most viruses, HIV is destroyed almost immediately upon contact with the open air,” he said. “The routes of transmission [listed in Pinkela’s case] have an extremely low probability of spreading infection due to the multiple defenses along the route from one body to the next – this is made even more true if the HIV-positive individual is also undetectable.”

When asked about the case, the Army only confirmed Pinkela’s charges but wouldn’t comment on the nature of the case or how HIV is prosecuted, generally, within the armed forces.

Pinkela has run out of appeals and is forced to now move forward with what little means he has. But in true spirit of service, he has found a new way to give back to the small town that he’s been forced to live in. In May, Pinkela plans to announce his plans to run for office in Otisville.

“I still believe in this country. And I still believe in the service, no matter that it’s the same system that allowed for this to happen to me,” he said.

In an effort to move past the experience, Pinkela and a friend went to last year’s Burning Man – the art and music festival held in Death Valley, California. There, when the fires began burning on the last day, he wrapped up his Army uniform, tied it off and threw it in a fire. He said it was one of the most cathartic moments he’s felt since being back in the Army.

Published in Rolling Stones on May 20, 2017

US: Law review article examines Louisiana's HIV-specific law and its discriminatory nature

This law review article summarizes the science of HIV and the historical background of HIV and HIV-related stigmas in the United States (“U.S.”). It delves into statistics about HIV diagnoses in the U.S. and Louisiana, and the disproportionate impact that HIV has on southern communities and communities of color. It then examines Louisiana’s HIV-specific law, introduced in 1987 and not updated since 1993, identifies the ineffectiveness and discriminatory nature of the law, how it is contrary to public health efforts, and calls for science and logic based revisions to it.  It also reviews several Louisiana HIV criminal cases.  Finally, the article acknowledges that solely changing the HIV criminal statute will not remove the stigma associated with HIV, and proposes mandatory public health training for law enforcement officers and prosecutors to combat implicit biases and HIV stigma.

The full article is availaible here

Norway: Activists concerned about latest proposals to change Norway's HIV law

Critical to changes in section 237 of the Criminal Code

Reidar Engesbak, April 26, 2017

(Google translation from http://blikk.no, original post below)

The government last week presented a proposal – Prop. 120 L (2016–2017) – for penalties on transmission of infection and endangered spread of infection.

The Ministry of Justice’s submitted to the Storting a proposal for amendments to section 237 of the Criminal Code, which mainly follows the recommendations of the statutory committee that were appointed on the basis of criticism of the current criminal law regulation.

The law committee resulted in the NOU “About Love and Cooling Tower – Criminal Justice in Major Infectious Diseases.”

“I am pleased that we now propose a regulatory framework that addresses the medical development,” said Per-Willy Amundsen, Deputy Minister of Justice, in a press release.

The proposal entails, among other things, clarification that criminal liability is not imposed when appropriate contingency measures have been observed. This includes, among other things, successful medical treatment of HIV infection. Emphasis has been placed on the fact that the knowledge base on the treatment of HIV infection has changed in recent years and that the infection risk from well-treated HIV-positive individuals must be considered minimal.

The government also proposes a change in the Criminal Procedure Act, which allows the police to routinely investigate the infectious status of persons suspected of rape or other serious sexual assault.

“The proposal means that we can be clarified faster than today if the victims have been exposed to a risk of infection. It is important for the government to strengthen the offender’s position in criminal matters, and this change will contribute to that, “Amundsen said in the press release.

Contrary to UNAIDS ‘recommendations

The user organization New Plus – Hivpositives National Association is not so excited. The proposals, according to New Plus’s view, involve a number of things that will worsen the legal situation of those living with HIV.

“What is positive with the bill is that it is suggested that you can not prosecute people who have been negligent and that it is now necessary to commit gross negligence in order to be prosecuted,” said Kim Fangen, Managing Director of New Plus.

New Plus nevertheless believes that the boundary is still unclear. “It is still not the case that actual transmission of infection will be required in order to be punished. Consequently, the provision will still violate UNAIDS ‘recommendations, which state that punishment can only be used where there is a person who is aware that he or she has HIV or with the knowledge and willingness to infect another and infection is actually transmitted.

A little impractical

The proposition is for people to be treated for successful treatment to be exempted from punishment. It’s a suggestion New Plus applaudes. “However, the proposal implies that one can only be exempted from punishment after successful treatment and has been with his partner for prior infection prevention guidance from healthcare professionals, as well as the consent of the partner after this. This scheme applies today only to persons living in marriage or marriage-like relationships. The Ministry therefore wishes to extend the personal circle that will be covered in principle, it will apply to all,” said Fangen to Blikk Nett.

New Plus believes the scheme is impractical. “We can hardly see for ourselves that you want to bring a man for two weeks to the GP to get such consent. It will soon become most relevant for those who have been together for so long that one will nevertheless be covered by today’s wording about marital-like relationships. In any event, this means that an obligation to inform sexual partners is forced for persons who are nevertheless not infectious. People who are on successful treatment will not be able to transfer infection to others, says Fangen, and refers to statements by Professor Jens Lundgren at Rigshospitalet in Denmark.

“When you know at the same time how little knowledge exists in the society about HIV, this means that you can quickly find yourself in a very vulnerable situation to those you want to have sex with, without even jeopardizing the other.

Increased penalty frame

The Ministry of Justice’s proposal also wishes to raise the penalty frame for gross negligence from 3 to 6 years through a new provision in the Act. “This is very serious because it sends a signal about the severity of these actions and could make it even more stigmatizing to live with HIV,” Kim Fangen points out.

“We know that most infections occur when the person who has the virus does not even know that they are infected. These penalties will continue to hit people who have, in their ignorance, exposed others to infectious persons and people who can not actually infect anyone, but because they have not been open about status and conducted infectious guidance can be punished nevertheless. This is believed to mean that fewer will be open about HIV status and that people living with HIV will feel further stigmatized, “said Kim Fangen to Blikk Nett.

“We therefore see no reason to cheer over this and will continue the fight to completely decriminalize HIV.

Kritisk til endringer i Straffeloven § 237

Regjeringen la forrige uke fram et forslag til straffebestemmelser om smitteoverføring og allmennfarlig smittespredning.

Justisdepartementets proposisjon (Prop.120L) til Stortinget et forslag til endringer i Straffelovens paragraf 237, som i hovedsak følger opp anbefalingene til lovutvalget som ble oppnevnt på bakgrunn av kritikk mot den gjeldende strafferettslige reguleringen.

Lovutvalget resulterte i NOU-en «Om kjærlighet og kjøletårn — Strafferettslige spørsmål ved alvorlige smittsomme sykdommer.»

– Jeg er fornøyd med at vi nå foreslår et regelverk som tar opp i seg den medisinske utviklingen, sa justis- og beredskapsminister Per-Willy Amundsen (FrP) i en pressemelding.

Forslaget innebærer blant annet en klargjøring av at straffeansvar ikke pådras når forsvarlige smitteverntiltak er iakttatt. Dette omfatter blant annet vellykket medisinsk behandling av hivsmitte. Det er lagt vekt på at kunnskapsgrunnlaget om behandling av hivsmitte har endret seg de siste årene, og at smitterisikoen fra velbehandlede hivpositive personer må anses som minimal.

Regjeringen foreslår også en endring i straffeprosessloven som åpner for at politiet rutinemessig kan undersøke smittestatusen til personer som er mistenkt for voldtekt eller andre alvorlige seksuelle overgrep.

– Forslaget innebærer at vi raskere enn i dag kan få avklart om fornærmede har blitt utsatt for smittefare. Det er viktig for regjeringen å styrke fornærmedes stilling i straffesaker, og denne endringen vil bidra til det, sa Amundsen i pressemeldingen.

Strider mot UNAIDS’ anbefalinger

Brukerorganisasjonen Nye Pluss – Hivpositives landsforening er ikke så begeistret. Forslagene innebærer etter Nye Pluss sitt syn en rekke ting som vil forverre den juridiske situasjonen for de som lever med hiv.

– Det som er positivt med proposisjonen, er at det foreslås at man ikke kan straffeforfølge personer som bare har vært uaktsomme, og at det skal nå kreves grov uaktsomhet for å kunne straffeforfølges, sier Kim Fangen, daglig leder i Nye Pluss.

Nye Pluss mener likevel at grensegangen fortsatt er uklar.

– Det er fortsatt ikke slik at faktisk smitteoverføring vil kreves for at man skal kunne straffes. Følgelig vil bestemmelsen fortsatt stride mot UNAIDS’ anbefalinger, som statuerer at straff bare kan brukes der det er snakk om at en person enten er klar over at hen har hiv, eller med viten og vilje går inn for å smitte en annen og smitte faktisk overføres.

Lite praktisk

Proposisjonen går inn for at personer på vellykket behandling skal fritas fra straff. Det er et forslag Nye Pluss applauderer.

– Forslaget innebærer dog at man bare kan fritas fra straff om man er på vellykket behandling og har vært med sin partner til forutgående smittevernveiledning hos helsepersonell, samt fått samtykke fra partneren etter dette. Denne ordningen gjelder i dag bare for personer som lever i ekteskap eller ekteskapslignende forhold. Departementet ønsker dermed å utvide personkretsen som vil omfattes til at den i prinsippet vil gjelde alle, sier Fangen til Blikk Nett.

Nye Pluss mener ordningen er lite praktisk.

– Vi kan vanskelig se for oss at man vil ta med seg en man har datet i to uker til fastlegen for å få et slikt samtykke. Det blir fort mest aktuelt for de som har vært sammen såpass lenge at man uansett vil dekkes av dagens ordlyd om ekteskapslignende forhold. Uansett betyr dette at man tvinger frem en informasjonsplikt overfor seksualpartnere for personer som uansett ikke er smittefarlige. Personer som er på vellykket behandling vil ikke være i stand til å overføre smitte til andre, sier Fangen og viser til uttalelser fra professor Jens Lundgren ved Rigshospitalet i Danmark.

– Når man samtidig vet hvor lite kunnskap som finnes i samfunnet om hiv, gjør dette at man fort setter seg i en veldig sårbar situasjon overfor de man vil ha sex med, uten at man selv utgjør noen fare for den andre.

Økt strafferamme

Justisdepartementets proposisjon ønsker i tillegg å heve strafferammen for grov uaktsomhet fra 3 til 6 år gjennom en ny bestemmelse i loven.

– Dette er svært alvorlig fordi det sender et signal om alvorlighetsgraden av disse handlingene og vil kunne gjøre det ytterligere stigmatiserende å leve med hiv, påpeker Kim Fangen.

– Vi vet at de fleste smitteoverføringer skjer der personen som har viruset ikke selv vet at hen er smittet. Disse straffebestemmelsene vil forsette å ramme personer som i sin uvitenhet har utsatt andre for smittefare og personer som i realiteten ikke kan smitte noen, men som fordi de ikke har vært åpne om status og gjennomført smitteveiledning vil kunne straffeforfølges likevel. Dette tror vi vil medføre at færre vil være åpne om hivstatus og at personer som lever med hiv vil føle seg ytterligere stigmatisert, sier Kim Fangen til Blikk Nett.

– Vi ser dermed ingen grunn til å juble over dette og vil fortsette kampen for å avkriminalisere hiv fullstendig.