AFAO Policy Analyst Michael Frommer highlights the many types of anti-HIV criminalisation advocacy undertaken by the Canadian HIV/AIDS Legal Network

The 8th IAS Conference on HIV Pathogenesis, Treatment and Prevention (IAS 2015) is on in Vancouver, Canada, this week. AFAO Policy Analyst Michael Frommer reports back on the pre-conference community forum. 

Key human rights challenges, such as criminalisation of HIV transmission, were centre stage at the IAS community forum on Saturday 18 July.

Alison Symington, co-director of Research and Policy at the Canadian HIV/AIDS Legal Network (Legal Network), described the challenge of advocacy and policy work in Canada in the face of ongoing criminalisation.

Aside from the significant justice issues when charges are laid for HIV non-disclosure, exposure or transmission, she also identified the serious of issue of people threatening their partners with an allegation, when there is relationship conflict, and how this in particular affects women who may be in abusive relationships.

In Canada, as in Australia, most of the people charged to date have been male heterosexuals, with a strong racialised element – mainly Black men. Since the mid-1990s, there has been an increase in the proportion of gay men charged.

Despite the fact that men make up the majority of those charged, Alison has investigated the pernicious effects of criminalisation on women. She explained how the ‘informal’ criminalisation of HIV positive mothers works, with their sense that their parenting is being under surveillance.

She outlined a huge range of advocacy and policy activities being undertaken by the Legal Network in response.

1) Legal defence strategy and intervention

Tactics include contacting the defence lawyers of individuals who have been charged with criminalisation related offences. The Legal Network also intervenes in the formal court proceedings and provides relevant scientific evidence.

2) Campaigns and advocacy

This has involved the Legal Network’s participation in the ‘Stop the Witch Hunt’ campaign targeting prosecutors, undertaken in collaboration with the AIDS Action Now. Legal Network staff also sit in court during trials, to make clear to judges/prosecutors that the community is monitoring developments.

3) Raising awareness/education

This education work is targeted at raising understanding among judges and among the community.

4) Working with doctors/scientists

A key piece of work was the Canadian Scientist Statement on HIV transmission risk. The Legal Network organised for 70 leading scientists from across Canada to sign this document which explained clearly the actual levels of risk of HIV transmission.

5) Distinguishing between HIV non-disclosure and sexual assault

HIV non-disclosure/exposure/transmission charges in Canada are made under the Canadian criminal law as an aggravated charge using the sexual assault provisions. The Legal Network aims to work with domestic violence/feminist organisations to ensure that HIV-related jurisprudence does not circumvent the appropriate application of sexual assault laws.

6) Prosecutorial guidelines

This has been an ongoing area of work across Ontario, Quebec and British Columbia. Ontario most recently advocated for the adoption of guidelines, but without adequate community input the Government drafted guidelines were dropped. There is still a desire to pursue appropriately formulated guidelines in future.

Marama Pala (in the audience) highlighting Australia’s public

health response to MC Dazon Dixon Diallo.

The comprehensive advocacy and policy response taken by the Canadian Legal Network is extremely impressive.

With one of, if not the highest rates per capita of criminalisation in the world, it is obviously very necessary in the Canadian context.

While some circumstances differ, there are a great many ideas that may be drawn upon for responding to HIV criminalisation in the Australian context.

US: As college student, Michael Johnson, 23, is sentenced to 30 1/2 years for HIV exposure, advocates organise and condemn Missouri’s HIV-specific law as ‘barbaric’

Yesterday, Michael Johnson, 23, was sentenced to 30 1/2 years in prison after being found guilty on May 14th of five counts stemming from the accusations of three people who said he exposed them to the virus without their knowledge.

For the most serious charge, recklessly infecting another with HIV, Johnson will serve 30 years in prison. The remaining four charges, for HIV ‘exposure’, carried sentences of 5.5, 5.5, 5.5 and 14 years. Johnson will serve his sentences concurrently, meaning he will spend a total of 30 1/2 years in prison.

Mr Johnson’s case created considerable attention from HIV, gay and social justice advocates, such as this open letter from black gay men, and the press release from The Center for HIV Law and Policy below.

Tomorrow (Wednesday 15th July), the Counter Narrative Project, HIV Prevention Justice Alliance and Positive Women’s Network – USA will hold a webinar to provide an update on the current on-the-ground efforts to support his appeal and a discussion of advocacy strategy from a legal, media, intersectional and activism perspective.

Click on this link to register for Michael L. Johnson: Strategizing collectively for justice.

Sentencing of Missouri College Student in HIV “Exposure” Case Decried As “Barbaric” 

UNAIDS Reference Group on HIV and Human Rights updates statement on HIV testing to include the “key trend” of “prolific unjust criminal laws and prosecutions”

The UNAIDS Reference Group on HIV and Human Rights has updated its statement on HIV testing  — which continues to emphasise that human rights, including the right to informed consent and confidentiality, not be sacrifced in the pursuit of 90-90-90 treatment targets — in the light of “three key trends that have emerged since the last statement regarding HIV testing was issued by the UNAIDS Reference Group (in 2007).”

One of these is “prolific unjust criminal laws and prosecutions, including the criminalization of HIV non-disclosure, exposure, and transmission.” The other two involve the recognition that HIV treatment is also prevention, and policies that aim to “end the AIDS epidemic as a public health threat by 2030.”

This statement is an important policy document that can be used to argue that public health goals and human rights goals are not mutually exclusive.

The Reference Group was established in 2002 to advise the Joint United Nations Programme on HIV/AIDS (UNAIDS) on all matters relating to HIV and human rights. It is also fully endorsed by by the Global Fund to Fight AIDS, Tuberculosis and Malaria Human Rights Reference Group.

This statement is issued at a time when UNAIDS and the Global Fund are renewing their strategies for 2016–2021 and 2017–2021, respectively.

To support these processes, the Reference Groups offer the following three key messages:

1. There is an ongoing, urgent need to increase access to HIV testing and counselling, as testing rates remain low in many settings. The Reference Groups support such efforts unequivocally and encourage the provision of multiple HIV testing settings and modalities, in particular those that integrate HIV testing with other services.

2. Simply increasing the number of people tested, and/or the number of times people test, is not enough, for many reasons. Much greater efforts need to be devoted to removing barriers to testing or marginalized and criminalized populations, and to link those tested with prevention and treatment services and successfully keep them in treatment.

3. Public health objectives and human rights principles are not mutually exclusive. HIV testing that violates human rights is not the solution. A “fast-track” response to HIV depends on the articulation of testing and counselling models that drastically increase use of HIV testing, prevention, treatment, and support services, and does so in ways that foster human rights protection, reduce stigma and discrimination, and encourage the sustained and supported engagement of those directly affected by HIV.

The section on HIV criminalisation is quoted below.

The criminalization of HIV non-disclosure, exposure, and transmission is not a new phenomenon, but the vigour with which governments have pursued criminal responses to alleged HIV exposures — at the same time as our understanding of HIV prevention and treatment has greatly advanced, and despite evidence that criminalization is not an effective public health response — causes considerable concern to HIV and human right advocates. In the last decade, many countries have enacted HIV-specifc laws that allow for overly broad criminalization of HIV non-disclosure, exposure, and transmission. This impetus seems to be “driven by the wish to respond to concerns about the ongoing rapid spread of HIV in many countries, coupled by what is perceived to be a failure of existing HIV prevention efforts.” In some instances, particularly in Africa, these laws have come about as a response to women being infected with HIV through sexual violence, or by partners who had not disclosed their HIV status.

Emerging evidence confrms the multiple implications of the criminalization of HIV non-disclosure, exposure, and transmission for HIV testing and counselling. For example, HIV criminalization can have the effect of deterring some people from getting tested and finding out their HIV status. The possibility of prosecution, alongside the intense stigma fuelled by criminalization, is good reason for some to withhold information from service providers or to avoid prevention services, HIV testing, and/or treatment. Indeed, in jurisdictions with HIV-specific criminal laws, HIV testing counsellors are often obliged to caution people that getting an HIV test will expose them to criminal liability if they find out they are HIV-positive and continue having sex. They may also be forced to provide evidence of a person’s HIV status in a criminal trial. This creates distrust in relationships between people living with HIV and their health care providers, interfering with the delivery of quality health care and frustrating efforts to encourage people to come forward for testing.

The full statement, with references, can be downloaded here and is embedded below.

HIV TESTING AND COUNSELLING: New technologies, increased urgency, same human rights

World Health Organization publishes analysis of impact of overly broad HIV criminalisation on public health

A new report from the World Health Organization, Sexual Health, Human Rights and the Law, adds futher weight to the body of evidence supporting arguments that overly broad HIV criminalisation does more harm than good to the HIV response.

Drawing from a review of public health evidence and extensive research into human rights law at international, regional and national levels, the report shows how each country’s laws and policies can either support or deter good sexual health, and that those that support the best public health outcomes “are [also] consistent with human rights standards and their own human rights obligations.”

The report covers eight broad areas relating to sexual health, human rights and the law, including: non-discrimination; criminalisation; state regulation of marriage and family; gender identity/expression; sexual and intimate partner violence; quality of sexual health services; sexuality and sexual health information; and sex work.

The authors of the report note that it provides “a unique and innovative piece of research and analysis. Other UN organizations are examining the links between health, human rights and the law: the United Nations Development Programme’s (UNDP’s) Global Commission on HIV and the Law published its report in 2012, and the Office of the High Commissioner for Human Rights (OHCHR) and United Nations Special Rapporteurs regularly report to the Human Rights Council on the impact of laws and policies on various aspects of sexual health. Nevertheless, this is the first report that combines these aspects, specifically with a public health emphasis.”

The points and recommendations made relating to overly broad HIV criminalisation (italicised for ease of reference) are included in full below.

Executive Summary: The use of criminal law (page 3)

All legal systems use criminal law to deter, prosecute and punish harmful behaviour, and to protect individuals from harm. However, criminal law is also applied in many countries to prohibit access to and provision of certain sexual and reproductive health information and services, to punish HIV transmission and a wide range of consensual sexual conduct occurring between competent persons, including sexual relations outside marriage, same-sex sexual behaviour and consensual sex work. The criminalization of these behaviours and actions has many negative consequences for health, including sexual health. Persons whose consensual sexual behaviour is deemed a criminal offence may try to hide it from health workers and others, for fear of being stigmatized, arrested and prosecuted. This may deter people from using health services, resulting in serious health problems such as untreated STIs and unsafe abortions, for fear of negative reactions to their behaviour or health status. In many circumstances, those who do access health services report discrimination and ill treatment by health-care providers.

International human rights bodies have increasingly called for decriminalization of access to and provision of certain sexual and reproductive health information and services, and for removal of punishments for HIV transmission and a wide range of consensual sexual conduct occurring between competent persons. National courts in different parts of the world have played an important role in striking down discriminatory criminal laws, including recognizing the potentially negative health effects.

3.4.5 HIV status (pages 22-23)

Although being HIV-positive is not itself indicative of sexual transmission of the infection, individuals are often discriminated against for their HIV-positive status based on a presumption of sexual activity that is often considered socially unacceptable.

In addition, in response to the fact that most HIV infections are due to sexual transmission, a number of countries criminalized transmission of, or exposure to, HIV, fuelling stigma, discrimination and fear, and discouraging people from getting tested for HIV, thus undermining public health interventions to address the epidemic.

Even where persons living with HIV/AIDS may be able, in principle, to access health services and information in the same way as others, fear of discrimination, stigma and violence may prevent them from doing so. Discrimination against people living with HIV is widespread, and is associated with higher levels of stress, depression, suicidal ideation, low self-esteem and poorer quality of life, as well as a lower likelihood of seeking HIV services and a higher likelihood of reporting poor access to care.

HIV transmission has been criminalized in various ways. In some countries criminal laws have been applied through a specific provision in the criminal code and/or a provision that allows for a charge of rape to be escalated to “aggravated rape” if the victim is thought to have been infected with HIV as a result. In some cases, HIV transmission is included under generic crimes related to public health, which punish the propagation of disease or epidemics, and/or the infliction of “personal injury” or “grievous bodily harm”.

Contrary to the HIV-prevention rationale that such laws will act as a deterrent and provide retribution, there is no evidence to show that broad application of the criminal law to HIV transmission achieves either criminal justice or public health goals. On the contrary, such laws fuel stigma, discrimination and fear, discouraging people from being tested to find out their HIV status, and undermining public health interventions to address the epidemic. Thus, such laws may actually increase rather decrease HIV transmission.

Women are particularly affected by these laws since they often learn that they are HIV-positive before their male partners do, since they are more likely to access health services. Furthermore, for many women it is either difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences, and they may therefore face prosecution as a result of their failure to disclose their status. Criminal laws have also been used against women who transmit HIV to their infants if they have not taken the necessary steps to prevent transmission. Such use of criminal law has been strongly condemned by human rights bodies.

Various human rights and political bodies have expressed concern about the harmful effects of broadly criminalizing the transmission of HIV. International policy guidance recommends against specific criminalization of HIV transmission. Human rights bodies as well as United Nations’ specialized agencies, such as UNAIDS, have stated that the criminalization of HIV transmission in the instance of intentional, malicious transmission is the only circumstance in which the use of criminal law may be appropriate in relation to HIV. States are urged to limit criminalization to those rare cases of intentional transmission, where a person knows his or her HIV-positive status, acts with the intent to transmit HIV, and does in fact transmit it.

Human rights bodies have called on states to ensure that a person’s actual or perceived health status, including HIV status, is not a barrier to realizing human rights. When HIV status is used as the basis for differential treatment with regard to access to health care, education, employment, travel, social security, housing and asylum, this amounts to restricting human rights and it constitutes discrimination. International human rights standards affirm that the right to non-discrimination includes protection of children living with HIV and people with presumed same-sex conduct. Human rights standards also disallow the restriction of movement or incarceration of people with transmissible diseases (e.g. HIV/AIDS) on grounds of national security or the preservation of public order, unless such serious measures can be justified.

To protect the human rights of people living with HIV, states have been called on to implement laws that help to ensure that persons living with HIV/AIDS can access health services, including antiretroviral therapy. This might mean, as in the case of the Philippines, for example, explicitly prohibiting hospitals and health institutions from denying a person with HIV/AIDS access to health services or charging them more for those services than a person without HIV/AIDS (167).

International guidance also suggests that such laws should be consistent with states’ international human rights obligations and that instead of applying criminal law to HIV transmission, governments should expand programmes that have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative.

3.6 Legal and policy implications (pages 29-30)

5. Does the state consider that establishing and applying specific criminal provisions on HIV transmission can be counter-productive for health and the respect, protection and fulfilment of human rights, and that general criminal law should be used strictly for intentional transmission of HIV?

The full report can be downloaded from the WHO’s Sexual and Reproductive Health website.

Antigua & Barbuda: 'Intentional HIV spread' rumours lead to calls for HIV-specific criminal law

The head of a local HIV/AIDS advocacy group is calling for residents to be more mindful of their sexual behaviour amidst rumors that people are intentionally spreading the HIV virus to others. The advice comes from Executive Director of the Antigua & Barbuda HIV/AIDS Network Inc (ABHAN) Eleanor Frederick.

“We cannot stop sending the message out there that HIV is alive and well and that we have to protect ourselves,” she said.

“Each person must take responsibility. First know their status and know their partner’s status. Use protection.”

An email to OBSERVER media from the Attorney General’s office stated that the Minster, Steadroy “Cutie” Benjamin, was recently presented with information to suggest that several residents have been intentionally infecting others with HIV.

In light of the allegations, an anonymous group of concerned citizens have called on Benjamin to enact laws to hold the culprits accountable.

“The group said that such vicious actions, in their estimation, is a matter of national security, and many lives are at risk and action needs to be taken soonest,” the missive read.

Benjamin, who is the country’s national security minister said he has promised that further research will be done to see what laws can be introduced to deal with the situation.

He is calling on members of society to protect themselves.

Frederick said she would support any move to criminalise the intentional spread of HIV/AIDS.

“I think it’s something that needs to be looked at. It’s not always a deterrent because when people are intent they couldn’t care less. There are those that decide they’re going to infect someone no matter what and there are others who will think twice about it, so we have to put something there,” she said.

Several countries across the world already have legislation condemning the intentional or reckless infection of another person with the HIV virus.

Some areas of the US have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV.

Others, including the United Kingdom, charge the accused under existing laws with crimes such as murder, manslaughter, attempted murder, or assault.

Zambia: Network of people living with HIV react to last week’s prosecution of a Zambian man in Wales for reckless HIV transmission, say HIV criminalisation is unworkable and unjust

THE Network of Zambian People Living with HIV and AIDS says criminalizing HIV transmission cannot work in a country like Zambia which has a high prevalence rate of the disease. Commenting on a story in Swansea, Great Britain where a Zambian man has been jailed for seven years after infecting two women with HIV, NZP+ programme manager Kunyima Banda in an interview described the situation as unfortunate.

According to the South Wales Evening Post, Mweetwa Muleya, 28, had unprotected sex with two women knowing he had HIV and he failed to tell them about his HIV condition before having sex with them. A court heard the women were “devastated” to find out they had caught the life changing illness after going for blood tests.

Asked if Zambia could also introduce a law to criminalize HIV infection, Banda said criminalizing HIV infection would becomes a barrier for people to access HIV/AIDS services.

“It is not right to willfully infect another person but it would be difficult for Zambia because you have to establish whether willful infection did take place, whether the person at a time that they had intercourse, the other person never knew that the partner was infected, that has to be determined as well. You also have to determine that the person actually did want to infect on purpose,” Banda said.

She said Zambia’s current system could not allow the criminalization of HIV because the country was putting interventions where more people could go for be testing.

“If we have a law which criminalizes HIV infection, it means that a lot of people will not go for HIV testing. What it will mean is that if people do not want to know their status, chances of them infecting other people then becomes higher because then they do not know that they are infected with HIV,” Banda said.

“Just imagine if a pregnant woman who has no access to medical facilities then gives birth and the baby gets infected, what do you call that? So all those are issues that we need to consider to make that law in Zambia which will not work for us because we are looking at getting to the 90- 90 target where 90 per cent of the people knowing their status, 90 per cent of people getting their treatment,” she said.

Banda said her organization could not support the criminalization of HIV infection.

She however said NZP+ did not encourage people to go out and infect other people willfully.

Kenya: Mandatory HIV reporting directive challenged as unconstitutional and a violation of people's rights

A directive by President Uhuru Kenyatta requiring the compilation of a report on all school children living with HIV and Aids has been challenged in court. The petitioners: Kenya Legal and Ethical Issues Network (Kelin), Children of God Relief Institute (Nyumbani) and two other parties, are apprehensive that compiling such a list violates the law and stigmatises the people living with HIV. High Court judge Mumbi Ngugi certified the matter as urgent and directed that the parties file and serve the relevant documents before the matter is heard tomorrow. The directive issued by the President on February 23 requires county commissioners and the ministries of Health, Education and Interior to collect up to date data and prepare a report on all school children living with HIV and information on their guardians. The directive further calls for information on expectant women and breastfeeding mothers who are HIV-positive. The petitioners stated that the Government agencies had proceeded to implement the directive without consulting people living with the virus, which they say contradicts Article 10 of the Constitution. See also: Leaders dismiss claims of ‘Kiambu-mafia’ machinations “The method of data collection under the said directive is prejudicial to the rights of the people living with HIV,” said Allan Maleche, the executive director at Kelin. He also said the National Aids Control Council (NACC) are holding the names illegally while implementing the president’s directive. Achesa stated in a sworn affidavit that the ministries had continued implementing the directive despite numerous advisory notes from his organisation, constitutional commissions and networks of people living with HIV. He added that a letter sent to the President on March 11 and a follow-up letter two weeks later were yet to be responded to. They now want the court to declare the directive unconstitutional and a violation of people’s rights. They also want the ministries and NACC to be compelled to destroy or codify all data in their possession collected as a result of the directive.

Read more at: http://www.standardmedia.co.ke/article/2000165780/president-uhuru-kenyatta-s-order-on-hiv-data-challenged-in-court

International Community of Women Living with HIV (ICW) publish updated position statement on overly broad HIV criminalisation

The International Community of Women Living with HIV (ICW) have published an updated position statement on the criminalisation of women living with HIV for non-disclosure, potential or perceived exposure, and transmission.

The statement highlights many problems with overly broad HIV criminalisation, but is notable for singling out issues that specifically relate to women living with HIV:

Critically, rather than reducing transmission of HIV, fear of prosecution may deter women from accessing needed treatment care and support, discourage disclosure, and increase vulnerability of women to violence…

Criminalization is often framed as a mechanism to protect women who are experiencing intimate partner violence or sexual assault. However, in practice there same laws intended to protect women often place them in increased risk for violence and increasing stigma surrounding HIV…

The criminalization of mothers for HIV transmission and/or exposure serves to further increase stigma for positive women who want to have children or who are pregnant, by blaming women for transmission.

ICW recommends the following:

  • Repeal laws that criminalize non-intentional HIV exposure or transmission, particularly those that single out women living with HIV or people living with HIV for prosecution or increased punishment solely based on their HIV status.
  • Empower women to know about the criminal context of HIV transmission and exposure.
  • Enact legislation that promotes gender equality in the criminal justice system.
  • Remove all laws that disproportionately target women living with HIV and marginalized groups.
  • Promote community based awareness campaigns to address criminalization as a human rights violation.
  • Train health care providers, and other support workers to ensure that confidentiality for women living with HIV is protected.
  • Increase legal support for women living with HIV facing prosecution under these harmful laws.

Read the full position statement below.

ICW Position Statement 2015 CRIMINALIZATION OF WOMEN LIVING WITH HIV: NON-DISCLOSURE, EXPOSURE, AND TRANSMI…