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

Canada: Canada’s sexual assault laws, as currently applied, put women living with HIV at increased risk of harm

Women living with HIV facing double jeopardy

Canada’s sexual assault laws are being applied in ways that, ironically, put some women at increased risk of harm. Women living with HIV are stuck between a rock and a hard place. If they disclose their HIV status to an intimate partner, they may be exposed to violence. If they don’t, they could go to jail for sexual assault.

People who fail to disclose HIV can be charged with fraud, invalidating sexual consent. They can be prosecuted for aggravated sexual assault, the most serious form of the crime, normally reserved for rapes compounded by physical violence. Conviction carries a penalty up to life in prison, and lifelong registry as a sex offender — even when there is no transmission of HIV nor any meaningful risk.

There is broad scientific consensus that when HIV is managed with anti-retroviral therapies, the risk of transmission is negligible, even without a condom. Today’s treatments can reduce viral loads to undetectable levels. Unfortunately, our courts haven’t caught up with the science. Legal practices are at odds with public health. Rather than hazard jail, people at risk of HIV may seek refuge in ignorance, choosing not to get tested.

Recently, Attorney General and Justice Minister Jody Wilson-Raybould acknowledged: “The criminal justice system must adapt to better reflect the current scientific evidence. . . . This could include a review of existing charging and prosecution practices.”

The statement was welcomed by Cécile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network and a member of the Ontario Working Group on Criminal Law and HIV Exposure. The organization has been working since 2009 to engage provincial attorneys general in developing prosecutorial guidelines that would limit prosecution to cases of intentional transmission. Foot-dragging on change has exposed Canada to increasing international criticism.

Kazatchkine believes the International AIDS Conference in Durban this past July may have been a turning point in the evolving federal position. During a plenary session Justice Edwin Cameron, South Africa’s first openly gay and HIV-positive Constitutional Court judge, singled out two nations with terrible records on HIV criminalization. “He mentioned Zimbabwe and he mentioned Canada,” she notes.

This message was compounded in the recent report by the UN Committee on the Elimination of All Forms of Discrimination Against Women, which called attention to Canada’s “harsh criminal sanctions” for nondisclosure. The report joins a chorus of international organizations recommending criminalization be limited to intentional transmission of the virus.

Criminalizing nondisclosure has had a particularly harsh impact on women, who often fear admitting they are HIV-positive will provoke violent reactions. Of some 180 prosecutions to date, Kazatchkine says, at least 18 of the defendants are women, many of whom were already marginalized by poverty or abuse.

Some of the women contracted the virus while being sexually assaulted themselves; now they’re being labelled sex offenders. The law’s application also has a disproportionate impact on Aboriginal women, who comprise at least six of 18 known female defendants.

Kazatchkine sees progress toward meaningful dialogue: Minister Wilson-Raybould’s statement “is having an impact.” At a roundtable Monday with several provincial ministries, participants got a keen sense of how women with HIV are caught between prosecution and potential violence. Kazatchkine was encouraged when Tracy MacCharles, the minister responsible for women’s issues, suggested the issue could be brought before the Ontario Roundtable on Violence Against Women.

The government has not committed to specific action. But advocates are cautiously optimistic that things are finally moving in the right direction.

Published in St. Catharines Standard on Dec 10, 2016

Canada: Criminalisation of people with HIV is based on and perpetuates misinformation

Health Economist, Assistant Professor at the University of Toronto

HIV Stigma Can Be More Dangerous Than The Disease Itself

In the past 20 years the medical implications of an HIV diagnosis have changed completely, almost miraculously. Antiretroviral drugs allow people living with HIV to have unprotected sex without passing the virus to their partners, to have HIV-negative children and to live healthy lives well into old age.

In fact, in 2016 the stigma surrounding HIV is probably more life-threatening than HIV itself. The fear of being “outed” as HIV positive stops a lot of people from seeking treatment. A delay in treatment allows the virus to spread, and in many cases, leads to death.

Stigma has many causes, one of which is a genuine fear of contagion. Despite the fact that HIV is now a treatable condition, “educational” messages on HIV prevention are still based on fear, and almost universally exaggerate the risks of HIV infection and its consequences.

Many of us still seem to view HIV as a life-threatening disease rather than a relatively mild condition.

Most people think that HIV is transmitted easily through unprotected sex, though the transmission rate is less than one per cent per act. When a person is taking antiretroviral drugs, the virus is suppressed and transmission is nearly impossible. Many of us still seem to view HIV as a life-threatening disease rather than a relatively mild condition.

In Canada, a person who is diagnosed with HIV and has unprotected sex can be sent to jail for aggravated sexual assault, even if they are taking medication and are virally suppressed. Such criminal convictions are based on and perpetuate misinformation. When it comes to HIV prevention, proper adherence to antiretroviral drugs is actually more effective than condoms.

What’s more, Canadian policy specifically discourages testing and treatment, because a diagnosis makes you criminally responsible. Treatment prevents the spread of HIV, so a policy that criminalizes HIV transmission could actually increase the spread of the virus. Even worse — high-risk individuals (those who frequently engage in unprotected sex) are the most susceptible to a conviction and therefore the least likely to get tested and treated. In November, the United Nations urged Canada to limit criminalization to cases of intentional transmission.

I study barriers to HIV testing in Malawi, a small country in southern Africa with an HIV infection rate of around 15 per cent. I recently ran a large-scale information experiment to correct a common misconception: most participants didn’t know that an HIV-infected person who is taking antiretroviral drugs is not contagious. Providing this information reduced stigma at the community level which caused a significant increase in HIV testing.

While Canada is a long way from Malawi, the social issues surrounding HIV are in some ways similar. Approximately one in five people living with HIV are undiagnosed. Misinformation and an inflated fear of HIV infection are widespread.

In a 2012 survey of Canadians commissioned by the Public Health Agency of Canada, nearly half believed that AIDS was always fatal, and only one-third believed that antiretroviral drugs were very effective. Half of survey respondents were not comfortable drinking from a glass once used by an HIV-infected person.

I understand the instinct to overstate the risks of HIV in order to encourage prevention, but messages that stoke fear and stigmatize HIV come with serious unintended consequences. Antiretroviral drugs are our best hope of ending the HIV epidemic.

In fact, “treatment as prevention” was a strategy developed right here in Canada, at the B.C. Centre for Excellence in HIV/AIDS. It has now been embraced by both the UN and the WHO. Rather than pushing prevention through fear, we should mobilize to support people living with HIV.

Good policy should focus not on fear, but on providing accurate information, encouraging HIV testing and providing universal access to life-saving medication.

[Press release] Activists call on leaders to protect human rights and stop imposing criminal sanctions against people living with HIV and TB

INTERNATIONAL HUMAN RIGHTS DAY 2016, 10 DECEMBER 2016:

Windhoek, Namibia, 09 December 2016: On the eve of International Human Rights Day 2016, the AIDS and Rights Alliance for Southern Africa (ARASA), a partnership of 106 organisations working in 18 countries in southern and east Africa, calls on governments to curb the increasing trend of enacting and enforcing incoherent, ineffective laws that undermine human rights, including the right to health, and threaten to derail the progress made to end the twin epidemics of HIV and TB.

ARASA warns that the commitments made towards eliminating HIV and TB – including the 2016 Political Declaration on HIV and AIDS, the Sustainable Development Goals and the End TB strategy – stand on shaky foundations, unless they are supported by a human rights-based approach, including strong political will and coherence between law and science.

Although there has been some improvement in ensuring access to treatment and care for people living with HIV and TB, there is a still a long way to go in terms of aligning HIV, TB and human rights.

“We cannot talk about the 90-90-90 targets without addressing the endemic human rights barriers, underpinned by the criminalisation of key population groups, including sex workers, people who use drugs, lesbian, gay, bisexual, transgender and intersex (LGBTI) people, people living with disabilities, and women. In addition, the current proliferation of HIV-specific criminal laws, which unjustly target people living with a treatable disease, are eroding the gains made in the HIV and TB responses,” said Michaela Clayton, Director of the ARASA.

The Advancing HIV Justice 2 report, published in June 2016 by the HIV Justice Worldwide partnership, of which ARASA is a member, highlights that, since 2000, 30 sub-Saharan African countries have now enacted overly broad laws related to the criminalisation of HIV transmission, exposure and non-disclosure.The Report also notes that the rise of reported prosecutions in Africa (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on this continent, is especially alarming.

“It’s ironic that HIV criminalisation began in sub-Saharan Africa just as the commitment to HIV treatment scale-up was envisioned at the Durban 2000 AIDS Conference,” says the report’s author, Edwin J Bernard, Global Co-ordinator of the HIV Justice Network. “These laws were not based on evidence but political expediency – the vision of ‘ending AIDS’ is totally incompatible with criminalising people living with HIV.”

 

“In the course of the Southern Africal Litigation Centre’s work, we continue to observe significant stigma and discrimination against people living with HIV and key populations, including through inappropriate applications of criminal laws, and unhealthy, inhumane conditions of detention in southern Africa. An effective HIV and TB-response demands that governments urgently reform legal environments that enable these abuses, and advance meaningful access to justice and accountability for victims of rights violations,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre (SALC).

 

Advocates around the world are working tirelessly to ensure that the criminal law’s approach to people living with HIV is consistent with up-to-date science, as well as key legal and human rights principles. But, unless investments are matched with clear programmatic articulation of human rights based approaches – essential for people living with HIV and TB and members of key and other vulnerable populations groups who currently have little or no access HIV and TB prevention, treatment, care, and support services – then the current rhetoric about the end of HIV and reduction of TB prevalence rates, will remain purely academic.

“Disclosure of HIV happens with support, with counselling and with an enablement. This is not the reality in the places where an average person seeks health services. HIV criminalisation goes against HIV prevention”, said Dora Kiconco Musinguzi, The Executive Director of the Uganda Network on Law, Ethics and HIV/AIDS (UGANET),

who have been petitioning against the Ugandan government for the amendment of the potentially harmful provisions of the HIV/AIDS control and Prevention Act 2015 which includes allowing for the disclosure of a person’s HIV-positive status, either forcefully, at the discretion of a health worker or at a’ concerned person’s’ request.

The evidence is in and the future is looking bleak: ARASA’s 2016 HIV, TB and Human Rights in Southern and East Africa (SEA) Report, which conducts scans of the legal and regulatory framework for responding to HIV, TB and sexual reproductive health (SRH) in SEA to determine whether laws, regulations and policies protect and promote the rights of all people, including key populations, continues to show that while these laws are meant to protect and promote the rights of all people, they are instead used against the most vulnerable people in our societies, not only moving them away from essential health services, but criminalising their rights to health and life.

This, while shocking figures released by the World Health Organisation in October 2016, show an estimated 10.4 million new TB cases and 1.8 million TB deaths in 2015, are a case in point. This is a 20% revision upwards from last year’s figures, showing that the TB epidemic is a bigger problem than we thought. There is no TB elimination scenario that is realistic without improved prevention.

Our conventional approaches to dealing with TB need to be revisited. As eloquently stated by Honourable Michael Kirby, a Member of the United Nations Secretary-General’s High–Level Panel on Access to Essential Medicines, in his Ten commandments for TB, TB requires rights-based approaches, and a revisiting of the ineffective hostile, punitive approaches, involuntary treatment and incarceration that have been levelled against people living with TB.

ARASA recommends that civil society and governments should work together to:

1.     Advocate to expand access to legal services for people with HIV and key populations and provide information about available legal services.

2.     Remove all overly broad and HIV-specific laws that criminalise HIV transmission, exposure and non-disclosure and criminalisation laws related to sex work, people who use drugs and gender identity for LGBTI.

3.     Expand HIV programming that is acceptable and accessible for LGBTI people, through LGBTI-friendly services.

4.     Advocate for legislation that explicitly criminalises marital rape and set a minimum age for marriage and access to Post Exposure Prophylaxis for Gender-Based Violence (GBV) survivors.

5.     Repeal laws that undermine or prohibit distribution of condoms and lubricants in prisons, including laws that criminalise sex between men in prisons

US: Four out of five LGBT people live in states with HIV criminalization laws.

A majority of LGBT Americans—about 81 percent—live in states with HIV criminalization laws, according to a new report from the Movement Advancement Project (MAP), a group that provides research and data related to LGBT equality.

Titled LGBT Policy Spotlight: HIV Criminalization Laws, the free report explores why these laws are problematic and how they harm public health and the justice system, according to MAP press release.

“Over the past 35 years, 38 states have passed laws that have not kept up with modern medical research and facts about the risks, likelihood, and modes of transmission of HIV,” states the press release. “These HIV criminalization laws therefore often criminalize a range of behaviors that are now known to carry no or a negligible risk of transmission. Most of these laws also not only criminalize the intentional transmission of HIV, but also criminalize behaviors that unintentionally or accidentally exposed others to the virus. Together, these laws perpetuate dangerous stigmas and misinformation about the disease and people living with HIV, create a strong disincentive for individuals to find out their HIV status, and disproportionately target—and add to higher rates of incarceration for—LGBT people.”

While offering a national look at HIV criminalization, the report also looks at the degree of punishment for these laws—for example, whether a violation is considered a felony and whether offenses will result in registration as a sex offender. The report also examines how HIV laws disproportionately affect the LGBT population and people of color.

Published in Poz on Dec 7, 2016

Matthew Weait, from the University of Portsmouth, writes on how stigma and the law affect the lives of people with HIV

HIV Stigma and the Criminal Law

December 1st marks World AIDS Day, an opportunity for people worldwide to unite in the fight against HIV, show their support for people living with HIV and to commemorate people who have died. Matthew Weait, from the University of Portsmouth, writes here on how stigma and the law affect the lives of people with HIV.

Today, December 1st, is World AIDS Day.  According to the latest available data from UNAIDS, 1.1 million people died from AIDS-related causes in 2015, there are just over 2 million new HIV infections globally every year, and just under 40 million people are living with the virus.  These are depressing figures, particularly in light of the advances in our understanding of HIV, its prevention and treatment, the laudable rise in the number of people accessing antiretroviral therapy (ART) (up from 7.5 million to 18 million in the past five years), and the massive impact of ART on reducing the likelihood of onward transmission.

Despite the fact that the life expectancy of people on ART has improved significantly, especially for those who receive a timely diagnosis, and that there exist effective ways of avoiding infection, the stigma associated with HIV remains.  The impact of this stigma, and the associated discrimination which people living with HIV (PLHIV) and those in key populations are subjected to, is substantial and undermines the work being done to promote access to health and other services critical to curtailing the epidemic.

Stigma is not only correlated with adverse health outcomes for PLHIV (including depression and lower adherence to medication), but also with non-disclosure of status and with less safe sexual practices.  It is for these reasons that combating stigma, and the factors which contribute to it, has long been identified as a public health priority.

Among the most pernicious contributors to HIV stigma is the widespread and inappropriate use of criminal laws against PLHIV and those at heightened risk of infection.  For example, PLHIV or those suspected of being HIV-positive have been and are at risk of being investigated, prosecuted and imprisoned for exposure offences – where no transmission takes place – even where there is negligible risk (as when a PLHIV is on effective treatment and has an undetectable viral load), where there is no risk (e.g. through biting or spitting), and even where a partner has consented to the risk involved.

In some countries, such as Canada, the very fact of non-disclosure of status can, irrespective of risk, turn otherwise consensual sex into sexual assault.  And where transmission does in fact occur (which is more likely when someone does not know their status and is not on treatment than when they do know and are), PLHIV are at risk of extended custodial punishment, even if it is not their intention to cause harm.

These laws serve no public health purpose and, because it is typically only those that have a positive diagnosis who may be found criminally liable, do nothing to incentivise the testing which is a pre-requisite of treatment and care.

It is not only those already living with HIV who suffer from the enforcement of punitive laws.  The social opprobrium associated with and / or criminalization of transgender people, homosexuality, sex work, and injecting drug use in many countries of the world (including nations with high HIV prevalence) reinforces stigma, makes it harder to support those at heightened risk of acquiring the virus, and in fact makes infection more likely.

If the possession of condoms is treated as evidence of sex work, sex workers may not carry them; and if the possession of syringes is treated as evidence of drug use, the chance that these will be shared increases, as does the risk of transmitting blood-borne viruses (including HIV and hepatitis C).  Put simply, the policing of these communities, and the absence of harm reduction opportunities in the carceral settings they may find themselves in as a result of that policing, exacerbate risks which are already greater than for the general population.

The adverse impact of using criminal law in the fight against HIV, and on those directly and indirectly affected by it, has been extensively researched and documented.  The consensus among expert bodies such as UNAIDS and the Global Commission on HIV and the Law is that countries should review their punitive laws and significantly restrict their use, and there have been a number of progressive and welcome developments both in law reform and in policing, many of these led by coalitions of activists and clinicians.  At the same time, and despite the evidence of the harm that they cause, and the stigma which it feeds and sustains, countries continue to pass and enforce these laws.

Irrespective of any moral or ethical questions there may be about HIV transmission, exposure, or non-disclosure, it is incontrovertible that the criminal law makes the elimination of HIV harder.  If we are going to end the epidemic, this needs to be recognised and acted on as a priority. If not, more people will become infected, more people will get sick, more people will have a lower quality of life – even when virally suppressed – and more people will die.

Published in BioMed Central on Dec 1, 2016

US: New Report from the William Institute finds HIV criminalisation laws in California do not reflect medical science

LOS ANGELES —  In California, outdated HIV criminalization laws do not reflect the highly effective medical advances for reducing the risk of HIV transmission and extending the quantity and quality of life for people living with HIV.

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status.  California has four HIV-specific criminal laws.

In HIV Criminalization in California: Evaluation of Transmission Risk, researchers Amira Hasenbush and Dr. Brian Zanoni suggest that these HIV criminal laws in California are not in line with medical science and technology related to HIV and may, in fact, work against best public health practices.

“Nine out of ten convictions under an HIV-specific criminal law or sentence enhancement have no proof of exposure to HIV, let alone transmission,” said Amira Hasenbush.  “No HIV criminal laws in California require transmission for a conviction.”Key findings include:

  • From 1988 until June 2014, 379 incidents resulted in convictions for an HIV-specific felony or sentence enhancement.
    • Of those, 100 percent required no actual transmission of HIV.
    • 98 percent did not require intent to transmit HIV.
    • 93 percent involved no specific allegation of conduct that is likely to have transmitted the virus:
      • Ninety percent of convictions were in solicitation incidents in which it is unknown whether any contact beyond a conversation or an exchange of money was initiated, thus possibly not having any exposure to HIV.
      • Three percent of incidents involved oral sex, a sex act whose transmission risk is estimated as “low” by the CDC.
      • Only seven percent of incidents involved vaginal or anal sex by definition of the crime.

HIV criminal laws have been disproportionately applied to sex workers. This has a disproportionate impact on women and people of color. Since solicitation by definition includes survival and subsistence sex work, these laws are also likely to disproportionately impact LGBT youth and transgender women of color.

Laws that criminalize conduct of a person who knows that they are HIV-positive may disincentivize testing and work against best public health practices.

The Williams Institute, a think tank on sexual orientation and gender identity law and public policy, is dedicated to conducting rigorous, independent research with real-world relevance.

Full report can be read here