Center for Reproductive Rights welcomes Kenya High Court ruling that quashes vague and unconstitutional HIV-specific criminal statute

03.30.15 – (PRESS RELEASE) Key provisions of a law criminalizing the transmission of HIV in an effort to curb spread of the disease in Kenya are unconstitutional and violate fundamental human rights, according to a recent landmark ruling from the High Court of Kenya. The Center for Reproductive Rights filed an amicus brief in support of the case brought by AIDS Law Project in 2010.

While the “HIV and AIDS Prevention and Control Act, No.14 of 2006” (“HIV/AIDS Act”) codifies measures for treatment, counseling, care and support of people living with HIV—it contains troubling provisions that criminalize the transmission of HIV in certain instances and permit partner disclosure of HIV/AIDS status by health care workers. The law also discriminates against women, who are often subject to coercive practices and violations of informed consent and confidentiality when testing for HIV, particularly during pregnancy.

In its decision issued on March 18, the three-judge panel ruled Section 24 of the HIV/AIDS Act which criminalized transmission of HIV was unconstitutional under the Kenyan Constitution, as the provisions are too vague and that disclosing patients’ HIV status violates their rights to privacy and confidentiality. The judges also advised the State Law Office to review the HIV/AIDS Act to “avoid further litigation” surrounding the law.

Said Evelyne Opondo, regional director for Africa at the Center for Reproductive Rights:

“All people are entitled to quality health services—regardless of their HIV status or other health needs.

“This law has inflicted fear, shame, and punishment on countless Kenyans, especially pregnant women who desperately need and deserve quality maternal health care.

“We commend the High Court for finding the criminalization of HIV transmission as unconstitutional and a violation of Kenyans’ fundamental human rights. Now is the time for the Kenya government to immediately amend this legislation and ensure people living with HIV can get the care they need without fear of discrimination or criminalization.”

“We must ensure people living with HIV receive the proper medical care and support that they need,” said Jacinta Nyachae, Executive Director of the AIDS Law Project. “If we want to reduce the spread HIV and AIDS and put an end to the stigma, violence and discrimination surrounding the disease, our public policies must be based on medical evidence and grounded in human rights.”

In 2011, the Center for Reproductive Rights submitted an amicus brief in the AIDS Law Project v. Attorney General & Director of Public Prosecutions (Petition No. 97, 2010), challenging the constitutionality of the law. The Center claimed that the HIV law could be interpreted to criminalize women living with HIV who expose or transmit the virus to a child during pregnancy, delivery, or breastfeeding. The Center argued that criminalizing HIV exposure and transmission does not protect women from transmission, but instead exacerbates existing stigma and discrimination against women, exposing them to risk of prosecution. The Center’s brief also recommended the law’s provisions permitting partner disclosure of HIV status be quashed.

Canada: Provocative new resource from anonymous collective of people living with HIV explains how to protect yourself from prosecution

This is not intended as legal advice. Please always consult a lawyer if you are concerned about issues related to HIV non-disclosure or exposure. And do your own research!

Some of the tactics suggested in this document are within a grey area of the law. Make sure you are aware of this, and make onlydecisions that you are comfortable with to protect yourself. We do notpromote non-disclosure of one’s HIV status, nor do we support the stigma that can make it so difficult to do so.

An anonymous collective of people living with HIV and our allies produced this document. We have no leaders, no spokespeople, and no meetings. Copy this, share it, add to it, and adapt it to your own setting. Join us by doing it. Time is running out.

*The photos in this document are from the July 1990 Montreal Sex Garage riots

Download booklet version here!

HOW TO HAVE SEX IN A POLICE STATE: OUR APPROACH

In 1983, Americans Richard Berkowitz and Michael Callen published the book How to Have Sex in an Epidemic: One Approach, which is credited as being the first piece of safer sex literature for gay men. In the early days of the AIDS epidemic and in the absence of state action people with HIV and their friends banded together and took things into their own hands. Through advocating the use of condoms and by sharing available HIV prevention information, safer sex in the late 80s and 90s was conceived as a way to take collective accountability for addressing the epidemic, care for one another, and resist fear-based and abstinence-only responses.

Thirty-years after the publication of How to Have Sex in an Epidemic we face a new type of emergency here in Canada. State neglect in the response supporting people with HIV is now coupled with intensified forms of state control, surveillance and criminalization. Canada is among the most punitive countries in the world for HIV-positive people, where the state is turning towards criminalization instead of public education and support.

WHAT YOU NEED TO KNOW: The “Law” in Canada

The landmark 2012 Mabior and D.C. Supreme Court decisions outline that people are required to tell a partner they have HIV before they engage in sex that poses a ‘realistic possibility’ of transmission. This legal test requires disclosure for vaginal intercourse unless a condom is used and the person with HIV has a “low” viral load. This decision did not address same sex relations, anal sex, or oral sex. Anyone who doesn’t disclose their HIV positive status when having sex with a condom OR low viral load can be arrested and prosecuted. Since this decision at the Supreme Court prosecutions are on the rise. The risk of being labeled a criminal is now biologically marked – we are infected with criminal potential. Acquiring a low viral load requires access to anti-HIV drugs, which are still out of reach for many of us. Condom use is also complex when power and gender-based violence are factors. Charges can range from assault to attempted murder and do not require HIV transmission to occur. A majority of people in these cases are charged with aggravated sexual assault, one of the most serious offences in the Criminal Code reserved for violent sexual assaults. Those prosecuted can face long sentences, are registered as sex offenders and held in segregation units. One accusation from an angry or upset former lover can result in lengthy court battles, incarceration and sensationalized media exposure. Even if the person decides to drop the charges, the state can pursue criminal prosecution in the “public interest”.

Within this context of intensified criminalization we see the reversals of hard-fought protections for our privacy and rights. Under the AIDS Industry’s “treatment as prevention” project, people living with HIV are now understood as carriers of disease who must be neutralized through medical treatment. This treatment imperative plays out regardless of if we have access to the expensive medications, if we can tolerate their many side effects, or even if there is a medical necessity to go on them. The fundamental principles underlying HIV testing (i.e. consent, confidentiality, and counseling) are rapidly disappearing. Voluntary and anonymous HIV testing are being replaced by involuntary and coercive forms of testing, now called “routinized testing”, where people can be systematically tested in health-care settings – many of them without their knowledge. The names and HIV-status of people who test positive can end up on government databases for life. Also, through increased public health oversight, community–based organizations have now become an arm of state surveillance, discipline and control. Many of them now fully endorse and implement new coercive testing approaches in the community.

What follows is a list of suggestions gathered by people living with HIV to help one another steer clear of the law and the state, to protect our communities and ourselves.

TAKE THE TEST & RISK ARREST

People who test HIV-positive will in most cases have this information collected by public health officials. In the early days of the epidemic activists and other people with HIV fought to have their information about their HIV-status be anonymous and out of the hands of state officials. Today things are different.

Today, in order to prevent intervention from the criminal justice system and public health officials it could technically be in your best interest not to know your HIV status. While this is still a grey area within the law, if you do not “officially” know you have HIV, then you could have less of a chance of being charged or prosecuted in relation to non-disclosure. Although, if you have engaged in activities that are commonly understood to put you at risk of HIV infection then you could have a legal obligation to disclose these activities to other partners. In 2003, a case went to the Supreme Court called R. v. Williams, and while the case did not fundamentally alter how the law is applied it did outline that if someone has an awareness of risk, then they have a duty to disclose, even if they are not aware of their HIV status. So we know that willful ignorance about your status is not going to keep you completely out of the courtroom if someone presses charges against you or the police and public health come knocking at your door. But being careful about where you get tested and who knows your HIV test results could prove helpful in some cases. You can order home HIV testing kits online, or buy them while travelling to other countries where they are available.

Avoid all HIV or STI tests at clinics where your real name is recorded. If you do not already know your HIV status, only go for anonymous tests (ensure the clinic you go to does not record your name, or any contact information), or get an at home test from across the border or online. The police and others can use medical records to confirm that someone has HIV, has been counseled about their status, is aware of their viral load etc. and that they are thus criminally liable regarding cases of non-disclosure. To prevent this from happening, try your best to keep your HIV status out of official state, public health, and AIDS service organization record keeping practices.

If you test HIV-positive through anonymous testing and you want to go to a doctor – ask your doctor if they do a confirmatory HIV test. Some doctors are mandated by public health to do a confirmatory HIV test, which will have your name attached to it. However, there are some HIV specialists that do not follow this mandate. Ask your friends and look for a doctor who will not submit your HIV status to public health. Sometimes a doctor needs to make sure you have HIV before they are willing to provide care. You can ask that they do a viral load test, as public health authorities do not as of yet collect this data. Having a record of your viral load can act as an equivalent to a positive HIV-positive test for you, and also for your doctor to provide appropriate care, while keeping you out of the public health database. But this strategy will not help if the medical records your doctor keeps are subpoenaed in the case of arrest.

If you are arrested on a charge in relation an HIV, do not tell the police your HIV status, or anything else without a lawyer. Do not volunteer any information to the police. It is important to try and get a lawyer who is knowledgeable on HIV exposure and non-disclosure cases, so that you can get an adequate defense. Legal HIV organizations have connections to knowledgeable lawyers who understand these sorts of cases.

FUCK SAFELY: HOW TO PROTECT YOURSELF

While we need to protect ourselves from public health and the state, we also need to protect ourselves from potential partners who may call the cops on us out of fear, lack of information or AIDS-phobia.

If disclosing is not possible, maintaining a low viral load and using condoms are the only way to comply with the law. But we know that both acquiring a low viral load and always using condoms is not possible for everyone. Also, there have been cases where people have been charged despite disclosing their HIV status to a sex partner, or have used condoms and had a low viral load. So if you are in position to do so, ask your partners to sign a statement agreeing that they know your HIV-positive status and have agreed to have sex with you. Alternatively, you can keep a record of having disclosed on your phone or computer. Take a screen capture of your disclosure on hook up sites. Remember to record the date and time. Recording your disclosure on a social media app is also a potential strategy. If possible, consider the idea of disclosing your status to person in front of a trusted witness, friend, or at a trusted counselor at a community organization.

We know that disclosure can result in violence or other consequences. In this case there are still things that you can do to protect yourself and your partners. If condom use is possible, some people will make sure to keep used condoms from past partners labeled and frozen in the freezer as evidence that the sex they had was protected. These are ridiculous measures, but these are ridiculous times.

If you have questions about safe sex, talk to people you know and learn about different ways to fuck safely. If you talk to a health care provider, ask general questions and don’t detail challenges that you may be having with disclosure and condom use. If you have questions about your legal duties, for example if the condom breaks, don’t ask a health care provider. Ask a person who is familiar with the law (there are organizations what work on HIV and the law in Canada, look them up online). Make sure the person you talk to does not document your concerns in your health records or some other form of record (like records they keep on clients at AIDS Service Organizations).

KEEP YOURSELF OFF THE PUBLIC HEALTH RECORD

The less information the state has on you the harder it will be for them to develop a criminal or public health case against you. This doesn’t mean that you shouldn’t notify people of your own status, but can be a strategy of keeping the state out of your sex life.

Sometimes public health officials do ‘contact tracing’ or ‘partner notification’ where they document who has come into contact with whom (or in this case, who has had sex with whom) to notify other partners of the potential “risk”. If you come into contact with public health officials who are doing ‘contact tracing’ tell them that you do not know the names of anyone you have had sex with. This collection of information by public health could later lead to potential criminal charges, a public health order, or other consequences. One strategy is to tell public health officials that you only have anonymous sex and that you do not know the names of any people you have sex with, or that you don’t have the means of contacting them.

If your HIV status is already recorded by public health, and you test positive for another sexually transmitted infection (STI), you could be asked to meet with a public health nurse. The nurse may ask you to give them the names of whom you have had sexual contact with. Never give names or contact information of other people to public health. Public health could contact them and notify them of your HIV status and that person could press charges if you have not disclosed to them.

Some public health officials can be very aggressive and stigmatizing towards people living with HIV and they may harass you once they have any of your contact information. If this happens, you can make an official complaint against them by contacting the health unit where they work.

Each province has its own public health department and health units. Some public health units are more concerned with regulating people living with HIV than others. Some provinces have public health laws that allow for the issuance of public health orders. Under public health law people can be mandated with legal orders to disclose their HIV-positive status to all sex partners in specific terms, practice sex in specific ways, or even be put under house arrest, as well as being court-ordered to take pharmaceuticals. To better protect yourself, know what public health jurisdiction you are in, and if they issue public health orders to people living with HIV.

If you receive a public health order, or get arrested call a lawyer right away! You often only have 15 days to respond to a public health order, and you will need a lawyer as soon as possible to support you in this process.

ACCESS SUPPORT NOT SURVEILLANCE

When going to a community organization, AIDS Service Organization or healthcare provider always ask any counselor, nurse, doctor, social worker, peer worker, or other support worker how, why, and under what circumstances they are professionally required to document their interactions with you, and if this data can be used to identify you. In many organizations, there is an increasing push to collect more and more information on people who access services, but this information can also be used against you. Anything they write down or collect about you can be subpoenaed and used as evidence in a court of law. Make sure that you trust your healthcare providers and they are transparent about how and why they keep records on you. Do not give out any information about your sex life, sex partners, HIV status or sex practices unless you are absolutely certain that they will respect your confidentiality and not document what you tell them. You can always request a copy of your file or any notes kept on you. Alternately, if you are disclosing to your sexual partners, you can ask your care provider to note this in your file to further protect yourself against accusations.

MAKE THIS AN ISSUE IN YOUR COMMUNITY

We are in a dangerous moment under the watch of a hostile regime and we urgently need to take back control of our lives, our health and our freedom. When possible, talk about HIV and talk about the potential impacts of HIV criminalization with friends, sex partners, colleagues, family and with communities that you are part of. Make it known that you are a person that other people can talk to about these issues. Work in your communities to build consensus at a grass-roots level to end the criminalization of HIV.

Police can pressure people in these cases into pressing charges. Refuse to be a witness and help prosecutions. Respect people’s decisions about disclosing. This complex social issue cannot be understood within – or reduced to – a legal and policing framework of “victim” and “perpetrator”. Work to undermine these practices that support criminalization. Encourage dialogue over calling the cops.

Be proactive and hold community organizations accountable. Call for AIDS Service Organizations, health-care providers, or other community groups to not participate in reporting or record keeping practices that could support HIV criminalization investigations. Ask these organizations to be transparent about what they do and what their policies are around reporting and collection of information. If they do not have policies or practices around this, push them to develop them. Ask community organizations, if their records are subpoenaed, to tell the cops to seal the evidence and instruct them that it can only be opened before a judge. This can buy you time to oppose the use of these records as evidence.

This issue is not over. There are opportunities for change if people start taking action now! As people living with HIV, we know this: We are responsible and we already practice care for the health of our sex partners. Now we must take action to protect ourselves from the violence of the state, the violence of the AIDS Industry, the violence of AIDS-phobia, and the violence of the criminal injustice system. As the carceral system becomes the watermark of our everyday life it is becoming clear that we are not the “public” that public health is interested in protecting. But we can protect ourselves if we work together, support each other, share strategies and push for change.

Brazil: HIV-specific criminal law introduced amid media frenzy and moral panic over ‘barebacking’ gay subculture

On April 2nd 2015, a simply worded amendment to Article 1 of Law No. 8072 of July 25, 1990 – covering ‘heinous crimes’ – will be presented to the Brazilian Parliament by the populist Congressman, Pompeo de Mattos.

The amendement, draft Bill No. 198, 2015, would add to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death – individuals who “transmit and infect consciously and deliberately others with the AIDS virus. (sic)”.

The bill has considerable support thanks to an outbreak of moral panic that began with an article in the daily newspaper, O Estado de S. Paulo, published on February 22nd, that uncovered the gay ‘barebacking’ subculture and further suggested that some men were deliberately passing on HIV to unsuspecting partners.

Two days later, it was reported in a blog of the weekly magazine, Veja, that police were now looking into the allegations.

According to [Secretary of Justice and Defence and Citizenship, Aloysius Toledo Caesar], [Secretary of Public Security, Alexandre de Moraes] has guided teams of the Department of Civil Police Intelligence (Dipol) to act covertly to identify the groups. Chat rooms will be analyzed, websites, blogs and even clubs and sex saunas. “We agreed to encourage all actions that may prevent persons continue to criminally transmit the virus,” said Toledo. “When the transmission is done intentionally, our understanding of the law is that the legal concept is configured to be like an assassination attempt, a more serious penalty,” he added. Under Article 130 of the Penal Code, the penalty for transmitting the virus without the partner’s consent is up to 4 years in prison.

On February 27th, the Brazilian country office of UNAIDS issued a press release expressing concern about the “impact [of these media reports] on increasing stigma and prejudice related to HIV and people living with the virus.” It went to explain that condoms, treatment, PEP and PrEP are all effective HIV prevention tools, and concluded:

UNAIDS also highlights that there is no evidence that the use of criminal laws for HIV is an effective tool to prevent and response to the epidemic. On the other hand, there are strong indications that the fear of being arrested or imprisoned may discourage people to test for HIV or to stay on therapy.

The moral panic became a full blown media frenzy on March 15 (and again on March 22) when the top-rated Sunday news TV programme, Fantástico, on TV Globo, aired a sensationalised two-part investigation into the ‘barebacking’ phenomeon, repeating the same allegations. The reports (in Portuguese) can be viewed here and here.

In reaction to this, the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health issued a strong statement of its own on March 21, and three Brazilian civil society organizations – ABIA (Brazilian Interdisciplinary AIDS Association), RNP+ (National Network of People Living with HIV) and GIV (Group to Encourage Life) – also issued press releases or statements noting that these reports stigmatise gay men living with HIV; that the idea of deliberately infecting someone is primarily a fantasy; and that in the extremely rare case of malcious, intentional transmisison the current general law is sufficient.

This isn’t the first time that there has been a media frenzy and moral panic around criminal HIV transmission. Two high profile cases in 2009 led to a strong statement from the Ministry of Health against the use of the criminal law unless transmisison was intentional.

According to the Global Criminalisation Scan, a number of laws can be used to prosecute alleged HIV non-disclosure, exposure or transmission, and there have been at least five prosecutions since the first recorded criminal case in 1995.

Follow the progress of bill PL 198/2015 here.

Update: On May 19th, former President Fernando Henrique Cardoso, who chaired the Global Commission on HIV and the Law, published a clear statement against the law on his Facebook page.

Screenshot 2015-06-01 12.15.07

Kenya: High Court declares Section 24 of HIV and AIDS Prevention and Control Act (2006) unconstitutional, removes overly broad and vague HIV-specific criminal statute

By Kamau Muthoni Kenya: The High Court has declared unconstitutional a section of the HIV and Aids Prevention and Control Act that sought to criminalise reckless spreading of the disease. A three-judge bench comprising justices Mumbi Ngugi, Isaac Lenaola and George Odunga ruled Section 24, introduced by the State and criminalising the reckless spreading of HIV, was unclear and had no limits on which group of people was targeted.

“We so hold that Section 24 of the HIV and Aids Prevention and Control Act No. 14 of 2006 does not meet the principle of legality which is a component of the rule of law. The said section is vague and over-broad, and lacks certainty, especially with respect to the term ‘sexual contact’,” read part of the judgment.

As drafted, the section provided that a person who is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knows that fact and voluntarily accepts the risk of being infected. Further, the section read that the person shall take all reasonable measures and precautions to prevent the transmission of HIV to others; and inform, in advance, any sexual contact or person with whom needles are shared of that fact, failure to which one would be jailed, if convicted by a court, for a term not exceeding seven years or a fine not exceeding Sh500,000, or both.

Justice Lenaola ruled that the section of law failed to meet the legal requirement that an offence must be clearly defined in law. “To retain that provision in the statute books would lead to an undesirable situation of the retention of legislation that provides for vague criminal offences which leave it to the court’s subjective assessment whether a defendant is to be convicted or acquitted,” said the judge.

In the case, filed by a lobby group called Aids Law Project, the court heard that the same section had warranted other people surrounding an infected person to seek his or her status from a medical practitioner without their discretion or involvement. The lobby group argued that such risk of unwarranted disclosure of confidential information was against the affected person’s privacy. Aids Law Project adopted the view that Section 24 of the Act was likely to promote fear and stigma as it imposed a stereotype that people living with HIV were immoral and dangerous criminals, and this would negate the efforts being made to encourage people to live openly about their HIV status.

Infectious Disease Society of America (IDSA) and HIV Medicine Association (HIVMA) Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases (2015)

This statement was issued by the Infectious Diseases Society of America (IDSA) and the HIV Medicine Association (HIVMA) on the urgent need to repeal or modernize HIV-specific criminalization statutes and laws criminalizing transmission or exposure to sexually transmitted infections and other communicable diseases.

Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health

Conference Dates and Location:

February 23-26, 2015 | Seattle, Washington

Abstract Number:

129

Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health

Primary Author:

Jeffrey Crowley¹

¹ O’Neill Institute for National and Global Health Law, Georgetown University, Washington, District of Columbia, United States

Abstract Body:

Laws and policies have been used to protect people living with HIV and affected communities from stigma and discrimination. Indeed, the Americans with Disabilities Act (ADA) and the UN Convention on the Rights of Persons with Disabilities are just two legal instruments that help to create environments where people feel safe enough to come forward for HIV testing and to engage in care. Laws and policies also are used in ways that are highly stigmatizing and that hinder public health approaches to responding to HIV. In the United States, thirty-four states and territories have laws that criminalize the conduct of people living with HIV based on perceived exposure to HIV and without any evidence of intent to do harm. Far from representing a legacy of the past, people with HIV continue to be prosecuted and jailed for failure to disclose their HIV status prior to engaging in sex and for spitting and biting offenses, often in the context of arrest by law enforcement. Moreover, this is a challenge in countries across the globe. As of 2013, twenty-six African countries had overly broad and/ or vague HIV-specific criminal laws, most enacted over the past decade, with a further three countries considering new HIV-specific criminal laws. As governments, clinicians, researchers, and advocates seek to maximize population-level HIV viral suppression both to protect the health of people with HIV and also to reduce HIV transmission, these laws and policies could hinder our collective efforts. This talk will examine the current landscape of HIV criminal laws and policies in the US and selected African countries, will examine available data on the effectiveness of such laws at deterring behaviors such as failure to disclose HIV status prior to sexual encounters, and will look for common lessons from both Africa and the US to suggest a path forward for promoting effective evidence-based approaches to reducing HIV transmission.

Session Number:

S-5

Session Title:

Advancing HIV Prevention: Lessons from Biology, Medicine, and Public Health Law

Presenting Author:

Crowley, Jeffrey

Presenter Institution:

Georgetown University

Criminal Law Not Effective Against HIV

THE CONFESSIONS of the 40-year-old man who went on a “deliberate spree to infect as many other people as possible” in 2002 (The Namibian, 14 January 2015) sparked a series of media reports in the past few weeks, which featured calls from the public for the enactment of an HIV-specific crime of intentional transmission of HIV.

The push to apply criminal law to HIV exposure and transmission is often driven by the wish to respond to serious concerns about the ongoing spread of HIV, coupled by what is perceived to be a failure of existing HIV prevention efforts.

No one suggests that a person who, knowing he has HIV, sets out intending to infect another, and achieves his aim, ought to escape prosecution. In these cases, as infrequent as they may be, the victims and their society seek justice because harm was caused with clear intention.

There is, however, no need to enact a new HIV-specific law to address this situation. We have existing common law crimes that can be applied. Where we seek to apply these, we must ensure that the use of criminal law in relation to HIV should be guided by the current best available scientific and medical evidence.

Two key scientific and medical developments in the past five years call for a reconsideration of the application of criminal law in the context of HIV. The first is that we know that effective HIV treatment has significantly reduced AIDS-related deaths and has transformed HIV infection from a condition that inevitably resulted in early death to a chronic manageable condition.

In Namibia the treatment programme has been a flagship of the response, achieving 2010 Universal Access target 2009, and has since continued to register remarkable achievements. By March 2014, an estimated coverage of over 81% of eligible adults and 54% of eligible children were on anti-retroviral therapy (ART).

Secondly we now know that effective HIV treatment significantly reduces the risk of HIV transmission from people living with HIV to their sexual partners.

Since HIV is now a chronic treatable health condition, it is thus no longer appropriate for criminal prosecution for HIV transmission to involve charges of murder, attempted murder or assault with intent to cause grievous bodily harm.

Based on current evidence, the harm of HIV infection should not be treated differently from that of other serious sexually transmitted infections like hepatitis B or C. Transmission of these infections is, however, seldom if ever subject to criminal prosecution.

In addition, the effectiveness of criminal law as a tool for reducing the spread of HIV is questionable. Criminal law is traditionally used to incapacitate, rehabilitate or deter offenders.

Why then should we treat HIV differently?

In order to slow the spread of the HIV epidemic, vast numbers of people would have to be prevented from having unsafe sex or engaging in other risk behaviours, which no criminal law could possibly do.

Indeed, imprisoning a person with HIV does not prevent the transmission of HIV. HIV risk behaviours are prevalent in prisons, yet correctional services authorities continue to reject the introduction of evidence-informed prevention measures such as condoms and fail to address sexual violence in prisons.

There is little evidence to suggest that criminal penalties for conduct that transmits HIV will “rehabilitate” a person such that they avoid future conduct that carries the risk of HIV transmission. Most cases of HIV transmission are related to sexual activity – human behaviour that is complex and very difficult to change through the blunt tool of criminal penalties.

There is no scientific data to support the claim that criminal prosecution, or the threat thereof, has any appreciable effect in encouraging disclosure to sexual partners by people living with HIV or deterring conduct that poses a risk of transmission.

What nearly 30 years of addressing AIDS has taught us is that key to preventing the spread of HIV is the reduction of stigma and discrimination on the basis of HIV status, real or perceived, the fear of which deters many people from seeking HIV testing and knowing their status as an entry point to accessing HIV treatment and other related services.

Applying criminal law to HIV exposure or transmission, except in very limited circumstances, does the opposite. It reinforces the stereotype that people living with HIV are immoral and dangerous criminals, rather than, like everyone else, people endowed with responsibility, dignity and human rights.

Instead of focusing our attention on passing more criminal laws that provide for an HIV-specific crime, we should rather be putting our energies into creating an enabling legal environment in which the social and legal constructs that place some people more at risk of HIV infection than others are addressed. In particular we should ensure that the laws in place protect women’s equal rights and that their right to be free from violence are enforced.

We should promote access to comprehensive, age-appropriate sex education and sexual and reproductive health services and other evidence-based strategies designed to reduce HIV risks. We should adopt a comprehensive anti-discrimination law that protects people against discrimination on the basis of real or perceived HIV status or on the basis of sexual orientation and gender identity and we should repeal laws that criminalise or further marginalise vulnerable groups such as sex workers, people who use drugs, and men who have sex with men, which create barriers to access to effective HIV prevention and treatment services by these groups.

Our response must be based on the best scientific and medical evidence rather than misguided fears and stigma.

• Michaela Clayton is a human rights lawyer who has worked on HIV and human rights in Namibia and internationally since 1989. She is Director of the AIDS and Rights Alliance for Southern Africa, based in Windhoek and serves as the co-chair of the UNAIDS Reference Group on HIV and Human Rights as well as co-chair of the Human Rights Reference Group of the Global Fund to Fight AIDS, Tuberculosis and Malaria. – See more at: http://www.namibian.com.na/indexx.php?id=23584&page_type=story_detail#sthash.kMTUAWlM.dpuf

Zimbabwe: HIV-specific criminal law on trial; ZLHR launches campaign highlighting impact of overly broad HIV criminalisation on women

Tomorrow, Zimbabwe’s HIV-specific criminal statute, Section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 will be on trial itself, facing its first-ever challenge in the Constitutional Court.

The Court will hear arguments on behalf of two applicants – Pitty Mpofu and Samukelisiwe Mlilo – both of whom were unfairly convicted of “deliberate transmission of HIV” in 2012, and who are now represented by Zimbabwe Lawyers for Human Rights (ZHLR).

“The provision is too wide, arbitrary and therefore violative of the protection of the law guarantee. It is submitted that the legislature has created an offence which is as scary as the evil that it seeks to redress.” Applicants head of arguments (1.1)

Law on trial

Although the ‘crime’ in Section 79 is called “deliberate transmission of HIV”, a wide range of variables are possible that involve neither being deliberate nor actually transmitting HIV.

It is a crime for anyone who realises “that there is a real risk or possibility” that he or she might have HIV to do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV.”

This, argues the applicants, is overly broad and unconstitutionally vague.

(Scroll to the bottom of the page, or click the link, to read the entire Applicants heads of arguments.)

Since 1996, International Guidelines on HIV and Human Rights have recommended that:

 ”Criminal and/or public health should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.”

It is eminently clear that Section 79 does not ensure that “elements of foreseeability, intent [or] causality” are adequately provided for, although there is a defence of informed consent via disclosure. (It is not clear, however, exactly what needs to be disclosed, given that it is possible to be prosecuted for anything that might be a risk even if you haven’t been tested).

Although the Zimbabwe law predates other African laws based on the flawed N’Djamena model law, funded and disseminated with US international aid money, it contains many of the same problems. (Zimbabwe passed the first version of Section 79 in 2001 and updated it in 2004 to include people who suspected they were HIV-positive, but were not yet diagnosed.)

‘UNAIDS recommendations for alternative language to some problematic articles in the N’Djamena legislation on HIV (2004)’, specifies the kind of language that could be used, should Zimbabwe still deem to find an HIV-specific criminal statute necessary.

Notably, it recommends defining ‘deliberate transmission of HIV’ as “transmission of HIV that occurs through an act done with the deliberate purpose of transmitting HIV”.

It further recommends that no criminal liability should be imposed upon:

an act that poses no significant risk of HIV infection.**
a person living with HIV who was unaware of his or her HIV infection at the time of the alleged offence.
a person living with HIV who lacked understanding of how HIV is transmitted at the time of the alleged offence.
a person living with HIV who practised safer sex, including using a condom.**
a person living with HIV who disclosed his or her HIV-positive status to the sexual partner or other person before any act posing a significant risk of transmission.
a situation in which the sexual partner or other person was in some other way aware of the person’s HIV-positive status.
a person living with HIV who did not disclose his or her HIV status because of a well-founded fear of serious harm by the other person.
the possibility of transmission of HIV from a woman to her child before or during the birth of the child, or through breastfeeding of an infant or child.

**The issues of significant risk and safer sex (along with the difficulties of proving timing and direction of transmission) are further expounded upon in UNAIDS expanded and updated 2013 guidance.

However, Zimbabwe could also decide to do away with Section 79 altogether, and implement a new law based on a model law developed for the Southern African Development Community (SADC; www.sadc.int), which comprises Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

This model law, which was unanimously adopted by the SADC Parliamentary Forum in 2008, integrates the protection of human rights as a key element of an effective response to HIV and has no specific provisions allowing for the criminalisation of potential or actual HIV exposure or transmission.

Alone But Together

Zimbabwe Lawyers for Human Rights are using the Constitutional Court hearing as a springboard for a campaign against overly broad HIV criminalisation, highlighting the case of Samukelisiwe Mlilo who features in a powerful 15 minute documentary produced by ZLHR, ‘Alone But Together – Women and Criminalisation of HIV Transmission: The story of Samukelisiwe Mlilo’.

Today, they will launch the documentary in Harare under the banner; ‘HIV on Trial – a threat to women’s health’.

Ms Mlilo was found guilty of ‘deliberately’ infecting her husband with HIV and faces up to 20 years in jail despite there being no proof that she had infected her husband. She claims she had disclosed her status to him following her diagnosis during pregnancy, and that her husband only made the complaint in revenge for her own complaint of gender-based violence following the breakdown of their marriage.

“At this point we do not know who infected who,” ZLHR’s Tinashe Mundawarara told Voice of America News in August 2012. “This is an example of the violation of women’s rights. Women are likely to know of their status first. Mlilo might have been infected by her husband, no one knows, and got charged and convicted.”

The other applicant, Pitty Mpofu, was also found guilty of ‘deliberate’ transmission of HIV a month after Ms Mlilo.

It was alleged that he infected his wife sometime between October 2009 and June 2011 , although he wasn’t diagnosed until “sometime in 2010.” No proof regarding timing nor direction of transmission was provided during the trial.

Highest number of reported criminal prosecutions in Africa

The first known successful prosecution in Zimbabwe took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted.

In this case, a 26-year-old woman who had mutually consensual sex with a male partner pleaded guilty to non-disclosure prior to unprotected sex. She was given a five-year suspended sentence, primarily because the partner – who had tried to withdraw the charges – did not test HIV-positive.

A further five men and three women have since been prosecuted, along with a 2010 case where a man was fined for falsely accusing his girlfriend, who subsequently tested HIV-negative, of infecting him with HIV.

The most recent court case, from November 2014, involved a man who was found guilty “based on a single witness” and sentenced to 15 years in prison.

Mpofu/Mlilo vs State, Constitutional Court of Zimbabwe, Harare (Case SC96/12 and 340/12 by HIV Justice Network

UK: Law Commission scoping consultation deadline this week; key findings and outputs from ‘Criminalizing Contagion’ seminar series may help inform the process

This week, the Law Commission – which reviews areas of the law in England and Wales that have become unduly complicated, outdated or unfair – will conclude its scoping consultation of the reform the Offences Against The Person Act, the law that is currently used to prosecute people living with HIV (and occasionally other sexually transmitted infections; one each so far for gonorrhoea, hepatitis B and genital herpes) for ‘reckless’ or ‘intentional’ transmission, as grievous bodily harm.

The deadline for responses is this Wednesday 11 February 2015.

The consultation is a scoping review – it is looking at the scope of whether a further full review of the existing law should take place, rather than examining what the law should be.

The consultation asks six key questions (out of 38) specifically relating to HIV (and STI) criminalisation:

We consider that future reform of offences against the person should take account of the ramifications of disease transmission. Do consultees agree?
We also consider that in such reform consideration should be given to: (1) whether disease should in principle fall within the definition of injury in any reforming statute that may be based on the draft Bill; (2) whether, if the transmission of sexual infections through consensual intercourse is to be excluded, this should be done by means of a specific exemption limited to that situation. This could be considered in a wider review; alternatively (3) whether the transmission of disease should remain within the offences as in existing law. Do consultees agree?
If the transmission of disease is to be included in any future reform including offences causing injury, it will be necessary to choose between the following possible rules about the disclosure of the risk of infection, namely: (1) that D should be bound to disclose facts indicating a risk of infection only if the risk is significant; or (2) that D should be bound to disclose facts indicating a risk of infection in all circumstances; or that whether D was justified in exposing V to that risk without disclosing it should be a question for the jury in each particular case. Do consultees have any preference as to these possible rules?
We consider the reform of offences against the person should consider the extent to which transmission of minor infections would be excluded from the scope of injury offences. Do consultees agree?
Do consultees consider that future reform should pursue the possibility of including specialized offences of transmission of infection, endangerment or non-disclosure?
Do consultees have observations on the use of ASBOs, SOPOs or other means of penalizing non-disclosure?

Responses to the scoping consultation, including those from the HIV Justice Network, will be published soon. Following the consultation, the Law Commission will decide on their recommendations for the scope of reform in this area and present them to Government in the form of a scoping report.

In the meantime, the summary of key findings and outputs from the Economic and Social Research Council’s seminar series ‘Criminalizing Contagion: legal and ethical challenges of disease transmission and the criminal law’, which took place at the Universities of Southampton and Manchester from January 2012 until September 2014, provides a comprehensive legal and academic overview regarding how the law should treat a person who transmits, or exposes others to the risk of, a serious infection such as HIV.

Written jointly by David Gurnham, Catherine Stanton and Hannah Quirk, the report provides a detailed overview of the discussions in the seminars as well as the numerous publications arising from them, and acknowledges contributions made by various groups and individuals.

Spain: Supreme Court upholds nine year sentence for ‘reckless’ HIV transmission; BBC Mundo publishes analysis

Spain’s Supreme Court last week upheld a nine-year prison sentence for a man, known as ‘ABM’, who did not disclose his HIV-positive status to his former partner, who is now also living with HIV. Although the reports do not state under which general law he was prosecuted, it is likely to be Article 149 of the Criminal Code, grievous bodily harm.

According to a recent analysis of all previous cases that reached Provincial or Supreme Courts (1996-2012), Article 149 has used for similar cases, using the ‘state of mind’ of ‘dolus eventualis’ similar to concept of ‘recklessness.’ The nine year sentence is similar to two previous cases for alleged HIV transmission during otherwise consensual sex in Spain. (Sixteen sentences and 9 writs belonging to 19 cases were included in the analysis; 17 judged by criminal and two by civil jurisdictions – full text at the bottom of the page).

The Court’s judgment, dated December 4, 2014 but published last week, noted that that the Cantabria Provincial Court’s ruling was “sufficiently motivated” and dismissed ABM’s appeal which cited a violation of his right to the presumption of innocence and lack of credibility of his accuser, with whom he maintains a dispute over ownership of property.

The Supreme Court upheld the Provincial Court’s sentence of nine years in prison. He also has to pay his former partner compensation of 70,000 euros.

According to the judgment, cited in several Spanish language media reports (the most detailed of which was in 20 minutos), ABM was diagnosed in April 2000. In 2007 he began a romantic relationship with the complainant which lasted until 2012. It was alleged that ABM did not disclose to her that he was living with HIV despite having condomless sex. In 2011, she began to suspect that her partner may be living with HIV.

The Court found there was nothing to suggest that she was already HIV-positive when she arrived in Spain (from Peru), based on her own testimony, her medical history and her GP, although there is no mention of phylogenetic analysis being used to attempt to show a link between the viruses. The Court also noted that the woman is asymptomatic and on antiretroviral treatment.

BBC report and analysis

On Friday, BBC Mundo (the BBC’s Spanish language BBC World website) published a longer analysis of the implications of overly broad HIV criminalisation in Spanish-speaking countries. I was interviewed for the piece, and am delighted to report that the journalist, Leire Ventas, produced a very good, balanced report.

Below is an approximate English translation of the Spanish language original.

Should knowing transmission of HIV be a crime?

January 30, 2015

A jail sentence in Spain rekindles debate over whether criminal law should apply to people who transmit the human immunodeficiency virus.Spain’s Supreme Court upheld the sentence of nine years in prison for a man who hid his HIV positive status from partner, infecting her with HIV.

The Court did not admit the appeal filed by the defendant.

This appeal had alleged violation of the right to presumption of innocence and lack of credibility of the victim, who maintains a dispute over ownership of a property.

According to the facts in the case, the convicted man was diagnosed HIV-positive in April 2000 and began a relationship with the woman in 2007.

They were together until 2012.

According to the Court, during those five years the defendant hid that he was HIV-positive from his partner and had sex without protection.

In 2011, woman began to suspect that her partner may have the virus and subjected to analysis, which confirmed infection.

“Intentional transmission”

Given this statement of facts, the Court found that the defendant had deliberately concealed his condition and that was the reason it upheld the ruling.

In the same vein, intentional transmission is the only case in which the Joint United Nations Programme on HIV / AIDS, UNAIDS, considers appropriate to apply the criminal law to people who transmit HIV or expose others to the virus.

“That is, when the person knows their HIV-positive serostatus and acts with intent to transmit or indeed does transmit,” says the report Criminalization of HIV Transmission, 2008 and its revision in 2013 the agency told the BBC.

“If a person known to be HIV-positive acts with the intention of transmitting the virus and transmits it (…), the damage justifies punishment,” it adds.

“In other cases, legislators, prosecutors and judges should reject the application of criminal law”.

Other cases

According to UNAIDS, the law should not apply to cases where there is no “significant risk” of transmission or where the person did not know they were HIV-positive, did not understand how HIV is transmitted, disclosed their status to the person at risk, or did not for fear of violence.

And neither should the law be used against someone who took “reasonable steps” of protection to reduce the risk of transmission or who previously agreed with the other person “a level of mutually acceptable risk”.

Thus, the agency recommends that governments legislate specifically to prevent HIV and only apply general criminal law to cases of intentional transmission.

They should also “develop guidelines to limit the discretion of the police and prosecutors in the application” of criminal law.

And UNAIDS believes that the latter creates “a real risk” of increasing stigma and discrimination.

“It is very likely that prosecutions and convictions fall on members of marginalized groups such as sex workers, men who have sex with men and people who inject drugs,” it says.

Obligation to disclose

For that reason, the agency also recommends repealing the legal obligation to disclose one’s HIV status or that of others, in the case of health workers, that exist in some countries.

“Everyone has the right to privacy regarding their health and should not be required by law to disclose such information, especially when it may cause serious stigma and discrimination and possible violence.”

It considers inappropriate to enact laws criminalising mother-to-child transmission of the virus.

“Everyone has the right to have children, including women living with HIV,” said UNAIDS.

It adds: “When pregnant women are advised on the benefits of antiretroviral therapy, almost all access treatment”.

The position of Edwin Bernard, co-ordinator of HIV Justice Network, a network of advocates providing information and international legal policy advice on HIV criminalisation, is not far from the recommendations of the UN programme.

“The only cases where it is appropriate to apply the criminal law is when there has been intent and these are usually very rare,” he tells the BBC.

He stressed that “not disclosing you have the virus, and keeping it a secret is not the same as wanting to spread it.”

There are several reasons not to tell, according to the activist: stigma, violence, even denying the condition itself.

Awareness, not persecution

Therefore he believes that laws around HIV in countries should be aimed at raising awareness and support for the eradication of the disease, and not the prosecution.

Latin America is a region particularly aware of this, he says.

“It has a good record of understanding that with regard to HIV the law should support and not persecute”.

“There have been very few known cases of prosecution for HIV transmission in Latin America. Most have taken place in Brazil and under a general, not specific, criminal law”.

In Spain, by contrast, between 1996 and 2012, 19 legal [or civil] cases were recorded.

This is registered in the report Temporal trends, characteristics and evidence of scientific progress in legal complaints for alleged sexual HIV transmission: 1996-2012.

However, the country with the most prosecutions is the United States, where 30 states have specific legislation on HIV.

“After eight years following up the issue, I can say that judicial systems, prosecutors and judges do not understand how the science has advanced, how the life expectancy of those with the virus has increased. They should know that the risk of transmission is very low “, says Bernard.

For the activist, the ideal situation would be to only have one or two lawsuits per year related to the topic.

“The law should be used, for example, in cases of rape. But when sex is consensual and those involved are aware of the risks, responsibility should also be shared.”

F. Bolúmar-Montero, M.J. Fuster-Ruiz de Apodaca, M. Weait, J. Alventosa & J. Del Amo (2015) Time trends, c…