Dalhousie University health promotion professor says Supreme Court decision acts as barrier to public health initiatives around HIV testing and treatment Jacqueline Gahagan is speaking on HIV non-disclosure at Dalhousie University on Jan.
British public confused about how you get HIV
PUBLIC CONFUSED ABOUT HOW YOU GET HIV Nearly half (46%) of the general public wrongly think you can get HIV from being bitten, spat at or coming into contact with a discarded needle and underestimate the impact unsafe sex has on HIV transmission, a new survey[1] shows (14 Jan) .
Judge Orders Alabama to Stop Segregation of HIV Prisoners in Alabama
Decision from ACLU Lawsuit Paves Way for HIV Prisoners to Have Access to Services, Classes and Training Available to Other Prisoners FOR IMMEDIATE RELEASE CONTACT: (212) 549-2666; media@aclu.org MONTGOMERY, Ala. — A federal judge today ordered Alabama to stop segregating prisoners living with HIV, ruling that the practice violates the Americans with Disabilities Act (ADA).
Austria: HIV-positive man aquitted for ‘oral sex without ejaculation’ (Update)
Update: December 18th
A gay man on trial for allegedly exposing his ex-partner to HIV during ‘oral sex without ejaculation’ has been acquitted. The judge told the 37 year-old defendant that he had acted “entirely properly” according to Austria’s ‘safer sex’ guidance.
The case is covered in several Austrian newspapers, including Der Kurier and Der Standard, as well as the gay news portal, GGG.at.
It centred around a complaint following the end of a short-lived relationship between summer 2008 and spring 2009. The defendant was diagnosed HIV-positive during the relationship and waited several months to disclose this to the complainant. However, since he was counselled by his doctor that insertive oral sex without ejaculation would not expose his partner to HIV, and this was the only sexual risk at issue, his defence was that he had followed Austria’s ‘safer sex’ guidance.
Defence laywer, Helmut Graupner, told the court: “They are attempting to criminalise people who do exactly what the state wants them. This accusation is simply a scandal.”
(Under Articles 178 and 179 of Austria’s criminal code, disclosure is not a defence to potential HIV exposure, and so this case was not about non-disclosure, per se, but rather about whether the complainant was, in fact, exposed to HIV via oral sex without ejaculation.)
The complainant claimed on the witness stand that he had suffered mental anguish due to the fear of acquiring HIV, and he had brought the case partially because he wanted compensation for this.
However, Judge Eva Brandstetter agreed with the defence that ‘safer sex’ guidance was followed. It was “very clear that you behaved entire properly,” she told the defendant as she acquitted him.
The prosecution has until Friday to appeal the acquittal.
Original post: December 14th
Austria’s leading HIV and human rights lawyer has strongly criticised both Vienna’s prosecutorial authorities and the Austrian Ministry of Justice for allowing the forthcoming trial of an HIV-positive man for practising safer sex – namely, “oral sex without ejaculation”.
“The state must not criminalise HIV-positives for complying with the safer sex rules propagated by the same state“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) – who is also serving as counsel for the defendant – in a strongly-worded press release (see below). “This prosecution not only constitutes a serious human rights violation but also poses a considerable threat to public health.”
In addition Austrian MP Petra Bayr has tabled a parliamentary question to the Ministry of Justice concerning this ridiculous prosecution which asks:
- whether Parliament is aware of this prosecution;
- what it intends to do to ensure that prosecutors are aware of HIV tranmisssion risks and science;
- how it can justify HIV-related prosecutions under articles 178 and 179 of the criminal code when UNAIDS recommends against such prosecutions and asks whether Parliament will consider amending these articles to reflect up-to-date science; and
- what measures are being considered by the Justice Department to ensure consistent and science-based jurisprudence that promotes public health.
This is the second prosecution this year for perceived HIV exposure that, in fact, posed no risk whatsoever. In March 2012, a 17 year-old boy was convicted of HIV exposure after his 16 year-old girlfriend performed oral sex on him without him first disclosing that he was living with HIV. The judge said that even oral sex with condom would have been criminal as the use of condoms would not diminish the risk of infection.
The trial will take place this Monday, 17 December 2012, in room 307 at the Vienna Regional Criminal Court, Wickenburggasse 22, 1080 Vienna. Rechtskomitee LAMBDA’s press release notes that the trial is public which suggests that concerned HIV advocates could attend the trial to support the defendant (who cannot be named) and to show the prosecutor and judge that such prosecutions are out of step with science and do nothing for HIV justice.
The full Rechtskomitee LAMBDA’s press release can be downloaded here and is also reproduced below.
Austria: HIV-positive Man Prosecuted for Safer Sex
Trial next Monday in Vienna
An HIV-positive man stands criminal trial next week for practising safer sex propagated by the state and by the publicly funded aids service organisations. The prosecutor indicted him for “oral sex without ejaculation” (!), exactly what has been propagated as safer sex for decades.
The prosecution relies on Art. 178 of the Criminal Code (“wilful endangering of human beings by transmittable diseases”), an offence which for two decades had been used to convict persons (mostly women) even for sexual intercourse using a condom.
1997 the Supreme Court at last held that sexual intercourse with a condom is in accordance with the safer sex rules and no criminal offence (OGH 25.11.1997, 11 Os 171/97). And 2003 it was only after years of reopening-proceedings that the Graz Appeals Court to quash the conviction of an hiv-positive man for oral sex without ejaculation (Carinthian Oral Sex Case: http://www.RKLambda.at/news_safersex.htm). Already these days Austria´s then Minister for Health, Herbert Haupt, had stated, “that criminal persecution and conviction of hiv-positive persons for sexual contacts with hiv-negative persons in spite of them complying with the health authorities’ and aids-service-organisations´ safer sex rules run counter to effective hiv- and Aids-prevention (2313/AB XXI.GP, http://www.parlament.gv.at/PAKT/VHG/XXI/AB/AB_02313/).
Threat to effective HIV-prevention
Austria finds itself within the top ten worldwide regarding criminal conviction rates of hiv-positive persons (http://www.gnpplus.net/criminalisation/node/1262). Germany never had such a special offence and Switzerland recently restricted its law (which never had been as far-reaching as the Austrian one) to infection with malicious intent, thereby implementing a recommendation by the Swiss Commission on Aids (now: Swiss Commission on Sexual Health) (http://www.bag.admin.ch/hiv_aids/05464/12494/12821/, document for download on the right side). UNAIDS and the EU-Fundamental Rights Agency for years have been calling for a repeal of such criminalisation of HIV-positive persons and for restriction of criminal offences to intentional infection (http://www.unaids.org.fj/index.php?option=com_content&view=article&id=162:unaidsundp-policy-brief-criminalization-of-hiv-transmission-&catid=25:technical-documents&Itemid=74; http://fra.europa.eu/en/publication/2010/rights-based-approach-hiv-european-union, http://www.hivjustice.net/oslo/oslo-declaration/).
Accordingly the Austrian Minister of Justice in 2010 on the occasion of the Vienna World Aids-Conference had assured that Austrian criminal law would not criminalize sexual acts in accordance with the safer sex rules and declared that the prosecutors would be informed to this effect (4941/AB, 2 June 2010, http://www.parlament.gv.at/PAKT/VHG/XXIV/AB/AB_04941/).
Double game played by the (Minister of) Justice?
Nevertheless last spring a 17 year old juvenile has been convicted for oral sex (without the allegation of ejaculation) with the judge even claiming that the use of a condom would not have made a difference (http://vorarlberg.orf.at/news/stories/2523707/). And now in Vienna the prosecutor is indicting a man explicitly even for oral sex without (!) ejaculation, behaviour explicitly propagated by the health authorities´ and the aids-service-associations´ (http://www.aids.at/alles-uber-hivaids/wie-kann-ich-mich-schutzen/; http://www.aidshilfen.at/sie-haben-fragen-wir-haben-antworten; https://www.gesundheit.gv.at/Portal.Node/ghp/public/content/Safer_Sex.html).
The trial takes place next Monday, 17 December 2012 in room 307 at the Vienna Regional Criminal Court, Wickenburggasse 22, 1080 Vienna. The trial is public. Revealing the defendant´s identity in the media is strictly prohibited (§§ 7 & 7a Media Act).
Members of federal parliament have tabled a parliamentary question to the Ministry of Justice concerning this incredible prosecution (13275/J, 6 December 2012, http://www.parlament.gv.at/PAKT/VHG/XXIV/J/J_13275/).
“The state must not criminalise HIV-positives for complying with the safer sex rules propagated by the same state“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel for the defendant, “This prosecution not only constitutes a serious human rights violation but also poses a considerable threat to public health.”
Louisianans charged with prostitution no longer registered as sex offenders
But, as of last year, through various legal and political battles, the law has been changed that effectively moved prostitution convictions back to the level of misdemeanor, as well as no longer forcing them to label as sex offenders. I got in touch with Deon Haywood, the executive director of Women With A Vision, who was one of the loudest voices and major driving forces in changing Louisiana’s archaic law. Her organization also has acted as legal advocacy for women having to do with issues of what they do with their bodies.
According to Ms. Haywood, the news was better than I had originally thought. Not only has the law been changed for all future individuals charged with prostitution, but individuals charged with prostitution prior to the change are now able to motion in court to remove themselves from the registry. According to Ms. Haywood, around 75 people have already had themselves removed from the registry, and around 100 people are waiting for a judge to hear their motions. “We haven’t had one person that’s been rejected. They no longer have to register as a sex offender, and they no longer have to pay,” said Ms. Haywood.
ZAMBIA HIGH COURT HEARS CASE ON RIGHTS OF HIV-POSITIVE PRISONERS: UPDATE FROM THE COURTROOM | Southern Africa Litigation Centre
On Monday, the Zambia High Court heard arguments in Mwanza and Another v Attorney General, a case challenging the poor prison conditions and the lack of adequate food provided to HIV-positive prisoners on treatment in the Lusaka Central Prison.You can read the case summary here.
Botswana: Proposed Public Health Bill goes against HIV programming best practice
Guest blog by Christine Stegling, Associate Director, Best Practice, and Senior Human Rights Adviser, International HIV/AIDS Alliance.
Reposted with permission from the International HIV/AIDS Alliance.
Late last week, and by all accounts with no previous public debate or discussion with relevant civil society representatives, a new public health bill was debated in Botswana’s parliament that surprised and shocked many activists. According to the Alliance’s Linking Organisation in the country, Botswana Network on Ethics, Law and HIV/AIDS (BONELA), this bill did not pass through the prescribed channels of consultation which would allow those most affected, such as people living with HIV and medical practitioners, to fully understand the rationale for the bill and to participate in shaping any kind of law reform.
The bill makes provisions that go against all better knowledge of a best practice approach to HIV programming based on the respect of human rights and leading to positive public health outcomes for all. For example it provides for non-consensual HIV testing, HIV testing without the knowledge of the patient and the possibility for doctors and dentists to require an HIV test before undergoing medical or dental procedures. It also proposes that people living with HIV inform any sexual partner or care givers of their status, regardless of the actual risk of transmission.
While some of the latter provisions are undoubtedly aimed at reducing the risk of future HIV infections, the bill as it stands undermines public health efforts to encourage people to learn about their HIV status and puts a disproportionate responsibility on people living with HIV. Some provisions in the current bill are a positive step however: outlawing pre-employment HIV testing and allowing young people from the age of 16 to receive an HIV test without parental consent. In particular, the clause on non-discrimination in the work place has been a long standing demand by civil society and will, I am sure, be welcomed by many in Botswana.
More could be said about the bill and surely Botswana civil society will be making their voices heard in parliament and in the media. But what is most frustrating is that for all the laudable efforts by the government to devise a national HIV programme based on support, openness and availability of services (including anti-retroviral treatment), Botswana has consistently failed to create an enabling legal environment that supports human rights and ensures non-discrimination of people living with HIV.
The National AIDS Council (NAC) of Botswana received a comprehensive report on HIV and the law as far back as 2005. I was a member of the council at the time and still have vivid memories of the lengthy debates about necessary law reform that would help to remove some of the barriers to an effective HIV response. But the report was never acted on. Seven years later, a poorly drafted piece of legislation is being debated in parliament that will undermine a response based on respect, dignity and openness.
Last week in the UK, the Global Commission on HIV and the Law launched its report presenting a coherent and compelling evidence base on human rights and legal issues relating to HIV. Former president of Botswana and long serving chair of the Botswana National AIDS Council, Festus Mogae, was one of the high profile commissioners involved in the report. It is disheartening to think that such an ill informed and badly formulated bill is now being debated in Botswana under his watch and one can only hope that his political influence and wisdom will prevent it from being passed.
This recent episode is just another example of how the law is often not used to promote a legal environment that supports access to HIV services but rather creates an atmosphere of distrust and persecution, fuelled by stigmatising attitudes against people living with HIV. It is sad to think that 30 years into the epidemic we have still not embraced a culture of equity, empowerment and support. Debates such as the current one in Botswana’s parliament also remind us about the urgent need to continue supporting civil society even in relatively well resourced countries in order for them to play the watch dog role that is so desperately needed and to ensure that the public is given the democratic space to critically examine law reform processes.
What is needed is not more well meaning rhetoric about the importance of human rights at international level, but rather support to those on the ground that hold political actors accountable to translate such rhetoric into reality and in the best interest of those with less influence and voice.
GMHC | GMHC Releases New Report, "Fenced in: HIV/AIDS in the U.S. Criminal Justice System"
This comprehensive report documents how mass imprisonment often destroys relationships, healthcare regimens, and employment opportunities for formerly incarcerated individuals. As a result, communities with high rates of incarceration also tend to have high rates of HIV infection. The state of HIV care and prevention inside prisons and jails is also examined, and comparisons between states in the U.S. and countries across the globe are explored.
Anti-Homosexuality Bill retains 'aggravated homosexuality' provision for men with HIV
Botswana Network on Ethics, Law and HIV/AIDS highlights problematic HIV provisions in "counter-productive, discriminatory, unconstitutional and barbaric" Public Health Bill
The Botswana Network on Ethics, Law and HIV/AIDS (BONELA), is shocked by the introduction of a Public Health Bill which our Parliament is currently debating. This Bill has some provisions that have no place in a democratic and modern day Botswana. It has provisions that are counter-productive, discriminatory, unconstitutional and barbaric.