India: HIV/AIDS (Prevention & Control) Bill strongly criticised for not guaranteeing universal access to HIV treatment

Delhi, Gaborone, New York – The International Treatment Preparedness Coalition (ITPC) and its global coalition partners are outraged following a decision by the Indian Parliament to absolve itself from responsibility of providing treatment for people living with HIV in India. The HIV/AIDS (Prevention & Control) Bill was passed in the upper house of the Indian Parliament yesterday, 21 March 2017. The Bill states that the government will provide treatment for people living with HIV ‘as far as possible’ (see full text below) absolving the government from its responsibility to protect the right to life.

“This is a step backwards for human rights, and a tremendous blow for all people living with HIV in India,” said Gregg Gonsalves, Chair of ITPC-Global. “It is extremely concerning that the India government has given itself this loophole at a time when the government program is in disarray, with the worst period of antiretroviral drug stock outs.”

Networks of people living with HIV and other civil society organizations lobbied Members of Parliament to amend the draft Bill that was first tabled in February 2014. In response to civil society concerns, senior Members of Parliament urged the Union Minister JP Nadda to make the amendment. HIV treatment activists were stunned when these parliamentarians withdrew their amendment at the last minute, thus giving way to the Bill passing into legislation.

“As the biggest supplier of generic medicines to the developing world, India could be the leading light in HIV treatment, an example to the rest of the world,” said Solange Baptiste, ITPC-Global’s Executive Director. “Instead this new Bill fails to enshrine the rights of its own people. I fear it’s an omen of things to come. We, HIV treatment activists, will be watching and monitoring to make sure the Indian government upholds its responsibility to all its citizens living with HIV.”

“Nothing in the world is more important than securing treatment for me, and my community of people living with HIV,” said Loon Gangte Regional Coordinator ITPC-South Asia. “I earnestly appeal to the government to delete the loophole ‘as far as possible’ and assure our right to life”.

Editor’s Note:

HIV/AIDS Bill Final Text

The provision for HIV treatment in Section 14 of the HIV/AIDS Bill, reads as follows:

1. The measures to be taken by the Central Government or State Government under section 13 shall include the measure for providing, as far as possible, Anti-Retroviral and Opportunistic Infection Management to people living with HIV or AIDS.

2. The Central Government shall issue necessary guidelines in respect of protocols for HIV and AIDS relating to Anti-Retroviral Therapy and Opportunistic Infection Management which shall be applicable to all persons and shall ensure their wide dissemination.

About International Treatment Preparedness Coalition

International Treatment Preparedness Coalition (ITPC) is a global coalition of HIV treatment activists formed in 2003 to respond to the needs of communities worldwide. The global network is driven by individual activists, peer support groups, grassroots networks, community-based organizations, and non-governmental organizations. Each of our partners share our values and vision and come together to address issues around access to treatment issues in their countries, regions and at the global level.

New Zealand: Ex-partner of the first person prosecuted for HIV transmission in New Zealand believes HIV prosecutions are harmful

HIV prosecutions are harmful, says victim

By Amelia Wade

A victim of the first person prosecuted for infecting others with HIV says she is against making criminals out of transmitters.

Marama Mullen believes it only pushes the issue further underground.

The Waikato woman was given HIV by Kenyan musician Peter Mwai who was jailed for seven years in 1994 for having unprotected sex with seven women and infecting two.

Just 22 years old at the time, Mullen said she couldn’t “really fathom” what the trial would mean.

“Quite a few times I wanted to stop and back out because of the lack of support for being the person who was doing it. There was a lot of media and a lot of people had differing views and opinions.

“But a lot has changed for me since then – I’ve actually become an advocate for not criminalising the spread of HIV because I truly believe it creates more stigma.”

She’s now spent more than a decade working with agencies for HIV aids as well as indigenous groups. She said the stigma of infection was especially harmful for Maori and Pasifika people.

“You’re disappointing your family double – it’s one thing if you’re gay but to add to that the stigma of being HIV positive is another.”

Mullen said it was common for people of Maori or Pasifika descent to go into denial about their condition and believes that may have been the case for Mikio Filitonga.

“When you tell someone you’re positive, it gives them the power to do what they want with that information.”

Mullen said she “felt for” Filitonga because if he was in denial, being publicly identified in a criminal trial as a HIV positive person was the “worst thing that could have happened to him”.

Usually when people didn’t disclose their status it was more to do with the fear of rejection rather than a criminal intent to infect, Mullen said.

She doesn’t think prosecutions are the best approach unless the person actively intended to infect someone.

Making someone a criminal as well as HIV positive only worsened the problem, she said.

Mullen has worked on a management plan – similar to one in Australia – which refers people suspected of infecting others to an agency.

It would to establish whether there are any mental health or cultural reasons behind their actions and whether a prosecution is necessary.

Mullen said it was “sitting on a bureaucrat’sdesk somewhere” yet to see the light of day.

Today’s medication is able to suppress the virus to the point it is undetectable and non transmittable so it was questionable as to whether someone even needed to disclose their status to partners.

Mullen said she believed if a person was dutifully taking their medication, they were taking enough precautions not to pass on HIV.

Within two months of taking the antiviral drugs, Mullen said her viral load – the amount of HIV in someone’s blood – dropped from 1000 which was “heading towards Aids” to it being undetectable.

She’s since been able to have two children – who are both HIV negative – and live a totally normal life.

Except for the stigma.

After being an outspoken advocate for acceptance, she’s considering moving from the Waikato to live incognito for the sake of her children.

Other parents have tried to get her 10- and 7-year-old kicked out of school, they’ve been bullied, had people refuse to go to their home and have been excluded from birthday parties – despite both being negative.

“The biggest message we want to get out there is that if we’re on medication we can’t infect people and we’re not transmittable.”

THE AIDS FOUNDATION AGREES

The New Zealand Aids Foundation said the broad application of criminal law to HIV transmission risks undermining public health and human rights.

Executive director Jason Myers said a prosecution should only happen if someone acted with the express intent to transmit the virus.

“Broad application of criminal law to the transmission of HIV has the potential to do significant damage to the public health and human rights based HIV response in New Zealand.

“It also increases the HIV stigma and discrimination experienced by people living with HIV, the vast majority of whom take care of themselves and their sexual partners.”

Myers said they knew the vast majority of people living with HIV who know their status act responsibly to take care of the health of both themselves and their sexual partners.

PREVIOUS HIV PROSECUTIONS:

1994 – In a highly publicised case, Kenyan musician Peter Mwai was the first person charged with infecting someone with HIV. He sentenced to seven years jail for having unprotected sex with five women and infecting two with HIV. Deported in June 1998 having served four years in jail here, Mwai died in Uganda in September 1998.

1999 – Former male prostitute Christopher Truscott held in “secure” care (he has escaped many times) in Christchurch after being prosecuted in 1999 for having unprotected sex with four men.

1999 – David Purvis, a 31-year-old Pakuranga invalid beneficiary, sentenced to four months jail for committing a criminal nuisance by having unprotected sex with another man. Pleaded guilty.

2004 – Zimbabwean Shingirayi Nyarirangwe, 25, was jailed in Auckland for three years after pleading guilty to four charges of criminal nuisance and three of assault.

2004 – Justin William Dalley, an unemployed 35-year-old of Lower Hutt, was sentenced to 300 hours of community work, six months’ supervision and to pay a woman $1000 in costs because he did not wear a condom during sex with her, despite knowing his HIV positive status. The woman did not contract HIV.

Soon after, he was acquitted of a similar charge because he wore a condom and thus set the legal precedent that by wearing protection an HIV positive man is taking “reasonable precautions” against infection and need not disclose his HIV status.

2009 – Auckland train driver Glenn Mills took his own life facing re-trial for 28 charges relating to 14 people. He had been in custody for over six months.

November 2016 – Christchurch man Johnny Lumsden, 26, is arrested and charged with criminal nuisance following accusations he had unprotected sex with several men without telling them he was HIV-positive.

THE LAW AND HIV

• If you are HIV positive, you do not have to disclose your status before having intercourse as long as you are using a condom.

• If the sex is unprotected, the HIV-positive person has a legal duty to disclose his/her status.

HIV IN NZ

During Mikio Filitonga’s trial, the court heard from Dr Graham Mills, an infectious diseases expert at Waikato Hospital. He said the most common mode of HIV transmission in New Zealand is male gay sex with 80 per cent of positive people believed to have been infected that way.

More than 50 per cent those who are HIV positive – 1500 to 2000 people – in New Zealand are believed to be living within the Auckland District Health Board’s boundaries.

Current estimates are that there are up to 4000 people in NZ who are HIV positive, he said.

Published in the New Zealand Herald on March 24, 2017

Mexico: Roberto Guzman on why HIV criminalisation laws do not protect women from HIV or violence and are inappropriate

Women and HIV criminalisation(Google translation – For the original Spanish version, please scroll down)

By Roberto Guzmán

Despite the fact that HIV infection has no cure, it has now become treatable and mortality has fallen. HIV has become a chronic disease with a higher quality of life and life expectancy. However, social perceptions have not significantly changed and HIV transmission and its gender-implications are still the cause of associated stigma and strong discrimination throughout the infection process and have become a major obstacle for prevention and medical care.

If a woman lives with HIV, her discrimination inhibits personalization of the risks for fear of distrust or of criticisms in her social environment, a situation that reduces the possibility of negotiating preventive measures and undermines her willingness towards her partners, by limiting a systemic diagnosis, by not wanting to share her results and her new life condition and by increasing the probability of not being able to seek treatment for its control.

Although the infection rates in this sector remains stable, women who contract HIV today continue to be ostracized, not only by their own families but also by their communities. They are expelled from their homes or rejected by their spouses to live in terror or to suffer violence, even to be deprived of life as if they were criminals.

If our Congress intended to apply a criminal law to the exposure and transmission of HIV as an outlet for this, perhaps its decree resulted from a well-intentioned desire to protect them in response to a legitimate concern for its rapid expansion. But continuing to allow society to criminalize them, does not foresee the emergence of new transmissions or reduce their vulnerability to the virus, on the contrary it would hurt them rather than help them, by having a negative impact on public health needs and the protection to their human rights. Continuing to criminalize them also does not protect them from sexual violence and rape, nor from unwanted pregnancies, on the contrary, it increases the risk of “secondary criminalization” when rape survivors infected with HIV could be persecuted for a possible exposure and transmission to their babies or their partners.

I believe that instead of responding to HIV by raising fears or laws, a human rights approach would emphasize protecting the dignity of all of them by creating conditions for free and informed taking of their health and life.

————————————————-

EL CIELO DE LA OPOSICIÓN

Por Roberto Guzmán

La mujer y su criminalización por VIH

Pese a que la infección del VIH no tiene cura, hoy se vuelve tratable y disminuye su mortalidad al tornarse crónica y con mayor calidad y esperanza de vida. Sin embargo, los cambios en la percepción social que aún continúan son menos significativos ya que su transmisión y sus implicaciones respecto al género son causa de un estigma asociado y motivo de una fuerte discriminación en los distintos ámbitos del proceso de la infección al volverse obstáculo importante para la prevención y su asistencia médica.

Sí una mujer vive con VIH, su discriminación inhibe la personalización que tiene frente al riesgo por miedo a generarse desconfianza o crítica en su entorno social, situación que reduce la posibilidad de que se negocien medidas preventivas y el socavar su predisposición con sus parejas, al limitar su detección sistémica al no querer compartir su resultado y nueva condición de vida y la  probabilidad de no poder buscar tratamiento para su control.

Pese a que la tasa de infección de este sector permanece estable, las mujeres que hoy contraen VIH continúan siendo condenadas a un ostracismo, no solo por sus propias familias sino por sus comunidades que las expulsan de sus casas o al ser rechazadas por sus cónyuges teniendo que vivir aterradas o sufrir violencias, incluso ser privadas de la vida como si fuesen criminales.

Si nuestro Congreso tuviera la intención de aplicar una ley criminal a la exposición y transmisión del VIH como una salida a esto, quizá su decreto resultaría un bien intencionado deseo por protegerlas como respuesta a una preocupación legítima por su rápida expansión. Pero el continuar permitiendo que la sociedad las criminalice, no prevé la aparición de nuevas transmisiones ni reduce con ello su vulnerabilidad frente al Virus, al contrario las perjudicaría más que ayudarlas, al lograr un impacto negativo en las necesidades de salud pública y en la protección a sus derechos humanos. El seguir criminalizándolas tampoco las protege de la violencia sexual y la violación, ni de los embarazos no deseados, por el contrario, aumenta el riesgo a una “criminalización secundaria” cuando las sobrevivientes de violación si fuesen infectadas por VIH pudieran verse perseguidas por una posible exposición y transmisión a sus bebes o a sus parejas.

Considero que en lugar de responder al VIH generando temor o leyes, un enfoque de derechos humanos pondría énfasis en la protección a la dignidad de todas ellas al crearse condiciones para la toma libre e informada en relación a su salud y su vida.

 

US: Article (including quotes from Sero's Sean Strub) highlights how movement against HIV criminalisation is growing stronger in 2017

HIV Criminalization Is Detrimental to Public Health. It’s Time for the Law to Catch Up. By Matt Baume. Outward: Expanding the LGBTQ Conversation on Slate.com

It was in the summer of 2015 that then-23-year-old Michael Johnson was sentenced to thirty 30 years in prison for transmitting HIV. Since 1988, his home state of Missouri has imposed harsh penalties for what prosecutors call “reckless infection,” and it’s hardly alone: Most states have, at some time, prosecuted people for transmitting the virus. But those prosecutions may soon come to an end.

Laws that establish HIV-specific crimes date back to the dark years of the epidemic: “Everyone detected with AIDS should be tattooed in the upper forearm, to protect common-needle users,” wrote William F. Buckley Jr. in the New York Times in 1986, “and on the buttocks, to prevent the victimization of other homosexuals.” At the time, hysteria over AIDS produced a national wave of stigmatizing laws—laws that have now been shown to have worsened the epidemic.

“If people are so concerned with HIV transmission, then perhaps the Missouri legislature and Governor Nixon should start by repealing this law,” wrote Kenyon Farrow, the U.S. and global health policy director for the Treatment Action Group, in response to Michael Johnson’s prosecution.

Though it may seem appropriate to discourage HIV transmission, laws that create HIV-specific crimes “are unjust and harmful to public health around the world,” according to the Infectious Diseases Society of America. Rather than discouraging transmission, the laws actually discourage patients from seeking testing and care, which in turn leads to more transmissions. Numerous other public health experts and political leaders have called for an end to HIV prosecutions, including the American Medical Association, the National Association of County and City Health Officials, the U.S Conference of Mayors, and the Obama administration’s Department of Justice.

But reform comes slowly, and advocates for repeal have found themselves toiling for years to overturn the harmful statutes. Now, at last, a coordinated nationwide effort is taking shape, and 2017 is likely to see significant advances in the decriminalization of HIV.

“There’s two big shifts over the last five or six years,” said Sean Strub, executive director of the Sero Project, a group that advocates for repeal. “One, the people in the LGBT community … have an understanding of what HIV criminalization is. It’s a general awareness of the phenomenon in the communities most directly affected.” He estimates that his organization has had over a thousand speaking engagements in the last half-decade.

“Second: The issue is increasingly seen in public health terms,” he said. “To be fair, there wasn’t a lot of hard evidence [until recently]. We now know that 25 percent of people with HIV in the U.S. know one or more individuals who are afraid to get tested for HIV for fear of getting criminalized.” That statistic is based on a Sero Project survey of over 2,000 people, designed to determine how the partners of people with HIV access health care. Their findings indicate that criminalization has a public health impact beyond people who already have HIV.

Organizations like Sero Project have learned some valuable lessons over the last few years about harm reduction, and they’re now leveraging those best-practices in communities and legislatures around the country. Those strategies include coordinated educational efforts that simultaneously hit multiple communities: Faith, LGBTQ, public health, and legal. In addition, advocates are establishing local coalitions so that legislative pressure comes from constituents, rather than national groups. And they’re engaging with individual prosecutions around the country.

This year will see particularly intense focus in midwestern and southern states: Mississippi, Tennessee, Georgia, the Carolinas, Ohio, and Indiana will see intensive outreach efforts. California is making great strides, with a bill announced earlier this month to modernize the state’s laws. That effort has included a detailed study of prosecutions, with an analysis of demographic data that could become a model for modernization in other states.

Customized approaches are key to the approach in each state. In Florida, for example, advocates have reached out to members of the criminal justice system, from police officers all the way up to judges. Iowa’s decriminalization effort included a collaboration between hepatitis and HIV groups.

Another important evolution is how closely reform advocates are working with advocates for other forms of social change. “Whether it’s trans activists or drug policy people or sex work activists or Black Lives Matter or penal system reform, HIV decriminalization seems to be a nexus for those efforts,” said Strub. “It’s so closely tied to the criminalization of bodies. … Five or six years ago, other organizations were not involved in this work.”

At the national level, advocates are sponsoring a Congressional lobbying campaign in March. Top priorities include reforms to Army policy, as well as the creation of incentives for states to modernize their laws. (An old provision in the Ryan White CARE Act, a 1990 law that provided funding for HIV programs, prompted many states to impose criminalization in the first place.) The Repeal HIV Discrimination Act, sponsored by Barbara Lee (D-CA) and Ileana Ros-Lehtinen (R-FL), would provide a framework for state-by-state repeal—and although it’s languished since 2013, it will see a renewed push next month.

Among the states to watch: Missouri, home of Michael Johnson. The state is in the midst of an organizing effort that Strub estimates could take two or three years. Johnson’s conviction was recently overturned due to prosecutorial misconduct, and he’s been remanded for a retrial likely to happen sometime this year. That’s encouraging news, though Missouri Court of Appeals refused to rule on the constitutionality of the law under which Johnson was convicted.

As a result, Johnson and many others like him will remain tangled in a maze of trials, legislation, and lobbying efforts, trapped by misguided laws that impose preventable harm—for now.

Nigeria: On Zero Discrimination Day, Coalition of Lawyers for Human Rights strongly denounce judicial HIV stigma in ongoing child custody case (Press release)

Breach of HIV status confidentiality and discrimination by the Hon Justice Olagunju of the Oyo State Judiciary 

Federal Capital Territory, Abuja. March 1, 2017.

Coalition of Lawyers for Human Rights, COLaHR, is a Coalition of Human Rights Lawyers working on issues of Persons Living With, Affected By or Most at Risk of HIV.

COLaHR has been following and monitoring a case involving a mother living with HIV, which is being adjudicated upon before the Hon Justice Olagunju of Court 7 of the Oyo State High Court of Justice.

Our interest in the matter is basically to monitor how courts, in the dispensation of justice involving persons living with HIV, respect their confidentiality and possible traces of stigma and discrimination, in accessing justice.

COLaHR is concerned with the attitude of the Honourable Justice on all fronts in this regard. On the 20th of February 2017, while lawyers on both sides were delivering their final addresses, the presiding Judge, publicly made comments which publicly revealed the HIV status of the plaintiff. Not only was this wrong and a gross breach of confidentiality, the Judge also made comments obiter in the case of custody of the child, which exhibited gross stigmatisation and discrimination.

The Judge largely stated as follows:

“putting the interest of the child first, imagine the trauma that the little girl will pass through when the news of her mother being HIV-positive spreads across her school.”

The above quote, which was made in passing (obiter) and may not be included in the courts records, is patently discriminatory and coated with stigma. It betrays lack of appreciation of the prevailing HIV and AIDS laws at the federal and state levels. Several questions arise from Justice Olagunju’s statement:

  • What happens if both parents of the child are HIV-positive? Will such a child be handed over to foster parents?
  • Are we saying that persons with HIV in Nigeria are not fit for parenthood?
  • Should all HIV-positive adults therefore be sterilised?
  • Who will spread the news of Omolara being HIV-positive all over her daughter’s school?
  • Is the right to confidentiality of HIV status not guaranteed under Nigerian laws?

COLaHR makes the following findings from our monitoring of this case:

  1. The disposition of Hon. Justice Olagunju clearly casts doubt on the ability of the court not to be swayed by the Plaintiff’s health status in coming to a decision on the matter.
  1. The Plaintiff, in her statements to COLaHR has clearly shown the fear as in above, given her Husband’s request for custody of the child is hinged on HER HIV-POSITIVE STATUS.

It is in light of the above that COLaHR calls on Hon. Justice Olagunju to excuse himself from the case as justice must not only be done, but must be seen to have being done.

We call on the Chief Justice of the State, to direct Hon. Justice Olagunju to step down from the case.

We will in consonance with the law, share our findings with the Federal Attorney General and Minister of Justice and the State Attorney General respectively.

Signed

Roseline Oghenebrume,

National Coordinator, Coalition of Lawyers for Human Rights

Canada: Toronto’s ‘Now’ weekly newspaper prominently features HIV criminalisation impact, advocacy and advocates

This week, Toronto’s weekly newspaper, ‘Now’, features four articles on HIV criminalisation and its impact in Canada.

The lead article, ‘HIV is not a crime’ is written from the point of view of an HIV-negative person who discovers a sexual partner had not disclosed to him.  It concludes:

After my experience with non-disclosure, I felt some resentment. But while researching this article, I reached out to the person who didn’t disclose to me. We talked about the assumptions we’d both made about each other. It felt good to talk and air our grievances.

 

I realized I’d learned something I’d never heard from doctors during any of my dozens of trips to the STI clinic, something I’d never heard from my family, my school, in the media or from the government – that you don’t need to be afraid of people living with HIV.

Screenshot 2017-01-13 09.48.27A second article, Laws criminalizing HIV are putting vulnerable women at greater risk, highlights the impact HIV criminalisation is having on women in Canada, notably that it is preventing sexual assault survivors living with HIV from coming forward due to a fear they will be prosecuted for HIV non-disclosure (which, ironically, is treated as a more serious sexual assault than rape).

Moreover, treating HIV-positive women as sex offenders is subverting sexual assault laws designed to protect sexual autonomy and gender equality. Front-line workers and lawyers say they’re hearing from HIV-positive women who are afraid to report rape and domestic abuse for fear of being charged with aggravated sexual assault themselves.

 

“People come to me all the time who don’t know what to do,” says Cynthia Fromstein, a Toronto-based criminal lawyer who’s worked on 25 to 30 non-disclosure cases. “Canada, unfortunately, is virulent in its zeal to prosecute aggravated sexual assault related to HIV non-disclosure.”

Screenshot 2017-01-13 09.48.41It also features a strong editorial, ‘HIV disclosure double jeopardy’ by the Canadian HIV/AIDS Legal Network’s Cecile Kazatchkine and HALCO’s Executive Director, Ryan Peck, which notes:

In a statement that mostly flew under the radar, Minister of Justice Jody Wilson-Raybould declared, on World AIDS Day (December 1), her government’s intention “to examine the criminal justice system’s response to non-disclosure of HIV status,” recognizing that “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”

 

Wilson-Raybould also stated that  “the [Canadian] criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”

 

This long-overdue statement was the first from the government of Canada on this issue since 1998, the year the Supreme Court of Canada released its decision on R v. Cuerrier, the first case to reach the high court on the subject.

15937182_1055417094604635_6279465723502378214_oFinally, the magazine features a number of promiment HIV activists from Canada, including Alex McClelland, who is studying the impact of HIV criminalisation on people accused and/or convicted in Canada.

He contributed his first piece to HJN last month.

Canada: Ontario Court of Appeal rules that HIV disclosure by police in news releases does not violate a person's constitutional rights

Court ruling sets ‘low bar’ for police to disclose HIV status

Ontario Court of Appeal finds police didn’t violate suspect’s Charter rights by disclosing health status in news release

If a person charged with a crime is found to be HIV-positive, that could be enough for police to disclose that very personal and sensitive information to the public.

That’s one takeaway from an Ontario Court of Appeal decision that advocates say is cause for concern for those living with HIV or AIDS, which continue to attract stigma and misunderstanding despite evolving science.

The province’s top court overturned a lower court decision last week, ruling that that Durham Regional Police did not breach former youth pastor Kris Gowdy’s constitutional rights following his 2012 arrest for Internet child luring when they disclosed in a news release that he was HIV-positive.

Gowdy was arrested after arriving at the home of someone who had been posing as a 15-year-old boy online, to perform oral sex, only to discover the individual was a police officer. Police searched his car and discovered documentation and medication proving he was HIV-positive. The arrest and Gowdy’s HIV status were widely reported on at the time, making international headlines.

Writing for a unanimous three-judge panel, Justice David Watt said the police force’s actions in disclosing Gowdy’s HIV status were “clearly in retrospect not advisable.”

But the judges held that the release of that information did not violate Gowdy’s right to security of the person because there had been no finding at trial that the disclosure had a psychological effect on Gowdy beyond the impact already caused by the charge he was facing.

They also concluded that provincial privacy legislation contains an exemption for municipal institutions to release personal information that they have lawfully gathered if it is for a “consistent purpose.”

In this case, Watt said that the “consistent purpose” was to further the investigation “by inviting responses from other sexual partners of Gowdy” who may be at risk of transmission.

“The police had reasonable suspicion; reasonable grounds to believe further offences had been committed was not required for the purpose of the media release,” Watt said.

The court dismissed Gowdy’s appeal of the conviction, but allowed the Crown’s appeal. The court substituted Gowdy’s two-year conditional sentence, which he served at home, with a one-year jail term, although it said he should not be re-arrested because he had already served his sentence.

As noted by the Court of Appeal, the lead investigator in the case did not seek legal advice or the permission of the police chief or his designate before issuing the news release, did not seek medical advice to find out the likelihood of transmission of the virus through a sexual activity such as fellatio, and did not seek to confirm Gowdy’s assertion that his medication had rendered his viral load so low that it made transmission unlikely.

Gowdy also never admitted in his interview with police that he had had sexual contact with individuals who were unaware of his HIV status, the court said.

“The lead investigator testified that, to his knowledge, he had never before investigated someone with HIV in his 23 years of policing,” Watt wrote. “The investigating officer acknowledged he did not consider the Charter rights of Kris Gowdy before requesting the media release.”

Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, one of the interveners in the appeal, said in an interview with the Star that police should have turned their minds to what the actual risks of transmission may have been in this case.

“I can’t think what that ‘reasonable suspicion’ is actually founded on. I don’t think the suspicion is a reasonable one, all the information the officer had was that this accused was HIV-positive,” Elliott said.

“This is a case in which merely finding out someone has HIV was seen by police as sufficient for putting out a press release, basically engaging in a fishing expedition.”

He also described the court’s interpretation of the “consistent purpose” exemption as “very, very liberal,” saying it sets an “extraordinarily low bar” that police have to clear before releasing a person’s HIV status.

The case highlights what advocates say is a lack of proper training for officers in dealing with HIV-positive individuals and the absence of clear statutes governing the disclosure of such information by police.

Durham police spokesman Dave Selby declined to comment on the court’s decision.

“In general, I can say that we regularly review our policies to ensure they are consistent with all applicable laws and judicial decisions. We will review this decision carefully, as well,” he said in an email. “We will continue to respect the fundamental privacy rights of all citizens while balancing our community safety responsibilities.”

Gowdy’s appeal lawyer, Russell Silverstein, said his client is considering whether to seek leave to appeal to the Supreme Court of Canada.

“When it comes to one’s HIV status, different considerations apply, it’s not the same as telling the world that the accused is suffering from cancer or some other disease,” he told the Star.

“You can’t say that the release of such information is per se a Charter breach, it’s going to depend on the circumstances, and the question is: what should the appropriate test be for the disclosure of that particular information?”

A former pastor with the Free Methodist Church of Canada, Gowdy posted an ad on Craigslist in 2012 looking for men interested in receiving oral sex, specifying he was looking for “under 35, jocks, college guys, skaters, young married guy.”

A detective with the OPP’s Child Sexual Exploitation Section homed in on the use of the words “young,” “skater,” and “under 35” in Gowdy’s ad, and began an online conversation with him, posing as a 15-year-old boy.

Shortly after agreeing to meet the “boy” for oral sex, Gowdy was arrested. He maintained in court that he never actually believed the person he was conversing with was 15 years old.

Gowdy, a former pastor with the Free Methodist Church of Canada, had kept his sexual orientation secret from his family and church, his 2014 trial heard. He had no prior criminal record and there were no complaints about inappropriate behaviour from the ministries where he had worked as a pastor.

“I regret incredibly my actions, they were foolish and inappropriate,” Gowdy told the Star in an interview in 2014. “It feels to me like there should be some kind of reprimand to these officers at the minimum.”

At trial, Justice Michael Block found that the release of Gowdy’s HIV status violated his constitutional rights. He circumvented the mandatory minimum sentence of one year in jail for the luring offence, and instead imposed a two-year conditional sentence, which Gowdy served at home. Gowdy’s name was to remain on the sexual offender registry for 20 years.

“Mr. Gowdy had a right to make his own choices concerning the disclosure of his HIV status,” Block said. “No doubt he would have chosen his own method and different timing if he ever determined to inform those near to him. Absent evidence of serious risk of transmission and rigorous compliance with statute, no one had the authority to make that decision for him.”

Russia: Lawmakers in the Altai Krai region unanimously agree to support a law to allow for mandatory HIV testing AND treatment

English version – Translation (For Russian version, please scroll down)

The Provincial Parliament’s legislative initiative will be sent to the State Duma as a draft federal law

BARNAUL, December 15. Deputies of the Legislative Assembly of the Altai Krai took the initiative to take on the federal law on compulsory treatment of people diagnosed with HIV. They decided to send a proposal to the State Duma as a session of the regional parliament adopted it, reports the press service of the Legislative Assembly.

“The Provincial Parliament will send to the State Duma a legislative initiative of the draft federal law” On Amendments to the Federal Law “On Prevention of Spread of the disease caused by HIV.” For example, citizens suffering from social diseases, which constitute a danger to others (tuberculosis), are subject to mandatory laboratory examination and medical observation or treatment and compulsory hospitalization or isolation in the manner prescribed by the law. The initiative involves the Altai Deputies to extend these norms to HIV-infected patients”, – said the press service.

They added that all 66 deputies unanimously supported the initiative to amend the Law. “The adjustment of the law is to allow professionals, as appropriate, provide forced treatment and monitoring of HIV-infected people to avoid the spread of the virus,” – explained the Legislative Assembly.

According to the press service, the medical check-up and treatment of HIV-infected people in Russia is fulfilled at the expense of the federal subsidies and intergovernmental transfers of the RF federal budget entities to ensure the procurement of antiviral drugs. “Thus, additional funding for coverage of medical observation and treatment of patients with HIV infection is not needed” – added the Legislative Assembly of the Altai Territory.

For most of the Altai Territory, the issue of HIV is relevant: according to the Regional AIDS Centre, for the past 10 years in the region, the number of people diagnosed with HIV has doubled to more over 24 thousand people. Now in the region 217 children and more than 3 thousand adults get treatment. According to official data of Ministry of Health of the Russian Federation, totally 824 thousand HIV cases are registered in Russia. The average therapy coverage nationally is about 40%.

Краевой парламент в порядке законодательной инициативы направит в Госдуму проект соответствующего федерального закона

БАРНАУЛ, 15 декабря. /Корр. ТАСС Ксения Шубина/. Депутаты Алтайского краевого Законодательного собрания выступили с инициативой принять на федеральном уровне закон о принудительном лечении людей с диагнозом ВИЧ. Решение направить такое предложение в Госдуму было принято на сессии регионального парламента, сообщили в пресс-службе Заксобрания.

“Краевой парламент направит в Госдуму в порядке законодательной инициативы проект федерального закона “О внесении изменений в Федеральный закон “О предупреждении распространения в Российской Федерации заболевания, вызываемого ВИЧ”. К примеру, граждане, страдающие социально значимыми заболеваниями, представляющими опасность для окружающих (туберкулез), в обязательном порядке подлежат лабораторному обследованию и медицинскому наблюдению или лечению и обязательной госпитализации или изоляции в порядке, установленном законодательством РФ. Инициатива алтайских депутатов предполагает распространить эти нормы и на ВИЧ-инфицированных больных”, – сказали в пресс-службе.

Там добавили, что все 66 депутатов единогласно поддержали инициативу о внесении изменений в ФЗ. “Корректировка закона должна позволить специалистам, в случае необходимости, проводить лечение и наблюдение за ВИЧ-инфицированными в принудительном порядке, чтобы избежать распространения вируса”, – пояснили в Заксобрании.

По данным пресс-службы, диспансерное наблюдение и лечение ВИЧ-инфицированных в России осуществляется за счет федеральных субсидий и межбюджетных трансфертов федерального бюджета субъектам РФ на обеспечение закупок антивирусных препаратов. “Таким образом, дополнительного финансирования на охват диспансерным наблюдением и лечением больных ВИЧ-инфекцией не потребуется”, – добавили в Заксобрании Алтайского края.

Для самого Алтайского края тема борьбы с ВИЧ актуальна: по данным регионального Центра СПИД, за последние 10 лет в регионе количество людей с выявленным диагнозом ВИЧ увеличилось в два раза – до более чем 24 тыс. человек. Сейчас в регионе получают лечение 217 детей и более 3 тыс. взрослых. По официальным данным Минздрава РФ, всего в России зарегистрировано 824 тыс. случаев ВИЧ-инфекции. Охват терапией в среднем по стране – около 40%.

Originally published in TASS

US: Discussion about the decriminalisation of HIV takes centre stage at World AIDS day panel in Georgia

A panel of HIV activists and LGBT organizers took aim at laws in Georgia that criminalize people with HIV and can leave them facing prison sentences of up to 20 years.

The discussion about decriminalizing HIV took center stage at a World AIDS Day panel on Nov. 30. People with HIV in Georgia can face a prison term of up to 10 years for having sex with someone without disclosing their HIV status. Even acts like spitting – which do not transmit HIV – are criminalized when directed towards a law enforcement officer with penalties that include up to 20 years of prison time.

Last year, a gay Atlanta man was charged in South Carolina with exposing a sex partner to HIV. Tyler Orr said he did disclose and as the panelists pointed out during the recent discussion, what counts as disclosure and how to avoid “he said, she said” debates in court is unclear.

“What advocates have tried to encourage folks to do in this really unwinnable situation is to have a notarized document or affidavit before you engage in one of these punishable acts,” Mel Medalle of SisterLove told the crowd of about 40 people.

“Which almost never happens, but that is how extreme and absurd this situation is,” Medalle added.

Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, pointed out that disclosure laws can also create safety risks for people with HIV.

“Every single time, especially as a woman, every single time, it’s me risking my personal safety,” Martinez said.

Marxavian Jones, who serves as one of Georgia Equality’s Youth HIV Policy Advisors, echoed agreed with Martinez.

“Who is going to defend me when I disclose my status to someone and they take it to social media and decide they want to tell everybody,” Jones said.

The Center for HIV Law & Policy has pointed to the increased risk of intimate partner violence that can come with disclosure, writing that disclosure can “provide an additional excuse, or cover, for physical violence.”

The ongoing stigma of HIV-positive individuals also means that – as Jones pointed out – a disgruntled lover posting a partner’s HIV status to social media can have real consequences, including job loss or being outed to family.

During the National HIV Prevention Conference in Atlanta last year, public health experts and HIV activists argued that rather than criminalizing HIV-positive people, and adding to the stigma they face, people with HIV should be pushed to treatment options.

At the recent panel, participants also highlighted legislation being drafted by the Coalition to End HIV Criminalization in Georgia. The coalition is currently reaching out to legislators to find a sponsor for the bill.

“[The legislation is] so we can repeal, which would completely get rid of it,” Medalle said. “The other option would be to reform it, so to make changes to it but to ultimately have some semblance of it.”

While Medalle said it may seem like a “no brainer that we wouldn’t want this [law],” stigma and other means of criminalizing HIV-positive individuals makes the issue more complicated. In Texas and a handful of other states, there are no specific statutes that target people with HIV but they are still prosecuted under other laws including reckless endangerment.

Reforming the law means that advocates can create better standards for prosecutions, and can “craft a law that comports with modern HIV science, what we know about the routes of transmission,” Medalle said.

Martinez, who is a member of the coalition, said the HIV criminalization law in Georgia also falls short in other aspects.

“The law in Georgia doesn’t require intent to infect, it doesn’t require likelihood of transmission because it has things like spit, urine, feces in it. It doesn’t require transmission,” Martinez said.

The Georgia law also doesn’t take into account issues like condom usage or advising a partner to take PEP (post-exposure prophylaxis) after sexual intercourse – acts which reduce the likelihood of transmission. The reforms to the law would change that, the panelists said.

Emily Halden Brown, a Georgia Equality field organizer who organized the panel discussion, said the event highlighted how people with HIV are impacted by it.

“I think the most valuable moment in all of the discussions I’ve ever been a part of on this, are the moments where people living with HIV share the stories of how they are directly impacted,” Brown said. “Anytime someone shares their personal story you can just feel the change in the audience.”

The event was hosted by Georgia Equality, SisterLove, and The Counter Narrative Project at Gallery 874. The panel discussion coincided with the “Living With” art exhibit, which featured art about the experiences of living with HIV. A closing reception helped raise funds for Georgia Equality’s HIV policy work.

Published in Project Q on Dec 12, 2016