A total of 65 participants from 15 countries discussed and debated region-wide experiences of enabling and restrictive legal and social environments faced by people living with HIV, other key populations and those affected by HIV in high income countries.
Since high income countries have accounted for the vast majority of criminal prosecutions relating to HIV non-disclosure, exposure or transmission, this video focuses on the part of the dialogue that heard testimony from policymakers, community advocates and experts from the Global Commission specifically on this issue.
The Regional Dialogue, hosted by the Global Commission on HIV and the Law, was jointly organized by UNDP, on behalf of the UNAIDS family, and the University of California, Berkeley Law, The Miller Institute for Global Challenges and the Law.
Expert meeting reviews scientific, medical, legal and human rights issues related to the criminalization of HIV exposure and transmission
World leading scientists and medical practitioners joined legal experts and civil society representatives to discuss the scientific, medical, legal and human rights aspects of the criminalization of HIV non-disclosure, exposure and transmission. The meeting, organized by UNAIDS, took place in Geneva from 31 August to 2 September.
Canadian study finds criminalisation confusion "chills" open and honest discussion of HIV risk-taking
The lack of clarity over when a person with HIV has a legal obligation to disclose their HIV-positive status to a sexual partner is resulting in “anxiety, confusion and contradictory HIV counselling advice,” according to a new study on the impact of HIV criminalisation in Canada.
This short film produced by The International Planned Parenthood Federation is a commentary from a selection of experts about the criminalisation of HIV transmission in England and Wales. It brings together a selection of policy makers, programmers, advocates, academics and people living with HIV to inform the public debate.
Tell your story – how are you impacted by HIV criminalisation?
Understanding the unintended impacts of the criminalisation of HIV exposure or transmission – way beyond the relatively few individuals who are accused, arrested and/or prosecuted – can play a crucial part in advocating against such laws and prosecutions.
Over the next few months, there are going to be multiple opportunities to highlight issues such as:
Creating fear and confusion about relying on disclosure to prevent HIV risk, and when disclosure is legally necessary
Making it harder for people living with HIV who are having problems maintaining safer sex to talk with healthcare workers due to fear of prosecution
Increasing HIV-related stigma
Creating a false sense that HIV is someone else’s problem, rather than a shared responsibility
Providing an additional disincentive for people to learn their HIV status
These opportunities will arise via the Global Commission on HIV and Law’s High Income Country Dialogue that will take place in Oakland, California on 16-17 September (click here for more details); the UNAIDS Programme Coordinating Board meeting focusing on HIV and Enabling Legal Environments that will take place in Geneva, Switzerland on 13-15 December; and through an ongoing project by IPPF, Behind Bars, that highlights a wide range of personal testimonies about the impact of HIV criminalisation.
I’m hoping that blog readers will help me collate personal testimonies about the impact of HIV criminalisation on their own lives. You don’t have to be an HIV professional or have been involved in a case to have been impacted (although such testimonies are very welcome).
As the example I’m about to show you illustrates, you can simply live in fear of the law because you are living with HIV.
I’m more than happy to receive testimonies from all over the world, but right now – because I am in the middle of producing a report about the impact of HIV criminalisation in Europe for the Global Commission on HIV and the Law – I’m especially looking for testimonies from Europe.
If you have a story to share, you can either paste it into the comment box or send it to me at yourstory(at)edwinjbernard.com. Some stories that I receive may be included in my Global Commission submission, and included in IPPF’s Behind Bars collection, and all will be highlighted on my blog. Submissions can be anonymous (but I will require some evidence of authenticity), and if you do use your real name, please indicate whether it can be used in full or not.
Here’s Jonas’s story (not his real name) from Norway. The use of Paragraph 155 (known as the ‘HIV Paragraph’) is currently being evaluated by a Government committee’s thorough investigation into the appropriateness of HIV criminalisation. The committee should produce its recommendations by Spring 2012, although there are no guarantees that a version of this law will not remain on the books and continue to be enforced when their deliberations end.
Paragraph 155 of the Norwegian Penal Code, an infectious-disease law enacted in 1902, essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status and consents, and irregardless of viral load or a desire by a couple to conceive. Both ‘willful’ and ‘negligent’ exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for ‘willful’ exposure or transmission and three years for ‘negligent’ exposure or transmission.
Paragraph 155 – and a story from a partially unlived life
In my teens I turned off my sexuality. Even as my hormones were reaching boiling point, I managed to shut down. I felt that my desires were wrong, and I am a strong-minded person. In my twenties, I told my family and friends that I was gay. I began to have sex carefully, but I was never in any relationship.
When I reached 30, and after some therapy, I began to feel ready to try enter into a relationship. In January 2000 I took the HIV test, together with my best friend, since it was the “millennium change.” My test turned out to be HIV-positive, and the shock was devastating. I was very far from having a wild sex life – it was just very bad luck. Like many other HIV-positive persons, I later came to understand what my doctor told me following diagnosis: “You are going to be fine. HIV is no longer a death sentence.” The words were a great comfort. I still had so much unlived life in me.
Life with HIV was difficult at first, but slowly I came to accept the new situation, the same way I had earlier come to accept my sexual orientation. But because of Article 155 must I, as a virile, and still fairly young man, now live like a monk – an asexual monk? What kind of life will that be? Would I be able to live like that?
Last time I had sex was some months ago. I was dating a nice guy I was attracted to, and we were at his place. Sweet music was playing. I lied and said I did not have the energy to have sex after my gym work out, but that I would like a massage instead. I got the massage. A very nice massage. The atmosphere got hot. I felt both excited and uneasy. He said he wanted to have sex with me. I said no. We continued with massage and kissing for a while. “Just a little?” He asked again. I gave in. We began to have sex. We got a condom and lubricant ready. Then the thought hit me hard, like a powerful wave. What if the condom bursts? It could happen, even if it is very unlikely. “Exposure to potential risk,” says the HIV Paragraph.
Although I hadn’t told him myself, I knew that he knew a guy who knows that I am HIV-positive, someone I met at a seminar for HIV-positive people some years before. But I did not know this guy well, and I share my diagnosis only with people I have known for a long time, and trust, like friends and family. What if he tells his friend about this incident? Perhaps his friend would guess who I am and say, was his name xxxx? ‘Ah yes, he has HIV, like me!’ What if he then calls the police? Reports me? What if the police comes to my home? Brings me in for interrogation, and puts me in a prison cell? What about my important meeting next week? Mum will be crushed if I go to jail. For having sex.
I pulled away. I used the oldest excuse in the book: headache. And low blood sugar. I put on my clothes and left. I never called him again. I have thought about him several times.
I will not be able to live my life without sex. I’m not a big fan of the word injustice. Nature is not fair. But Paragraph 155 criminalises me for wanting to live a full life – and that includes a sex life. Me – who has studied law just because everyone said I was always so fair and wise.
I feel like a victim, even though I often criticise the role of the victim. A victim of this discriminatory law that criminalises the sexuality of people affected by HIV. A victim of prejudice related to HIV, which few seem to bother to care about. Norwegian society likes its scapegoats. I want to remove the criminalisation of sexuality in Norway. I want a good life. In Norway. In 2011. And in the rest of the years I will live in this beautiful country.
The British tabloid press had a field day yesterday following the sentencing of Nkosinati Mabanda, 44, at Wolverhampton Crown Court for ‘reckless’ HIV transmission. He received a four year prison sentence; was also given an anti-social behaviour order (ASBO) ordering him not to have sex without first revealing his HIV status (unclear if this also covers his time in prison); and will be considered for deportation following his release.
Of note, the only successful prosecutions for ‘reckless’ HIV transmission in England & Wales since 2004 have taken place when the defendant pleaded guilty. (See this table of all UK cases from NAT – an additional heterosexual case in Wood Green, London, was dismissed in March 2011 due to lack of evidence).
In fact, Mr Mabanda had tried to change his guilty plea (and his legal representation) when he realised how difficult it was to prove the charges he’d already pleaded guilty to. He was not only unsuccessful, but did himself no favours by having a further sexual relationship with another woman (who did not test HIV-positive) in the two years he was out on bail. (The first report of his case, from December 2009, is here.)
Since Mr Mabanda’s country of birth is Zimbabwe (he apparently migrated to the UK in 2004), the two right-wing tabloids, The Sun and The Daily Mail pandered to their readers’ prejudices and characterised this human being who had make mistakes (as human beings do) as an ‘HIV Monster’.
The term “HIV Monster” and its variant, “HIV Avenger”, has been around since the late-1980s. The idea that a person with HIV is no longer human but a “monster” was established by the myth of “Patient Zero,” a key figure in Randy Shilts’ bestselling 1987 book about the AIDS epidemic, And the Band Played On. “Patient Zero” was characterised as a sociopathic individual who may have intentionally infected others following his AIDS diagnosis, behaviour for which, Shilts suggested, the coercive powers of the state were ineffective. This myth has since been replayed many times worldwide and is often the impetus for calls for new HIV-specific laws and/or tougher sentencing.
Certainly, readers’ comments suggest the tabloids did their job of dehumanising Mr Mabanda – many calling for his death, castration or, at the very least, immediate deportation to what they hope will be a certain and painful death in the absence of HIV treatment in his native Zimbabwe. Anti-immigration (and anti-African) sentiment is also widely expressed. The comment below is illustrative of all of the above, and yet also alludes to the difficulties of disclosure due to HIV stigma. (Of course, having children if you are HIV-positive is neither “off the cards” nor “selfish” – it is possible to conceive and give birth with minimal risk to a sexual partner or infant and many people with HIV can, and do, have children with the full support of their doctors, partners and families.)
The content of the stories – if not the tabloids’ headlines – take their facts and their moral tone from a police press release, and the words of the complainant.
The press release states:
Superintendent Jan Thomas-West, from West Midlands Police, said: “The particularly disturbing element of this case is Mabanda’s blasé attitude towards his victim and his various other partners.
“Mabanda told officers that he had had sex with nine women in the UK and that seven of them had not know he was HIV positive. Unfortunately, these women were impossible to trace.
“He seems to have shown no regard for the health of others or the potential life sentence he may have passed on to anyone who had sex with him.
“His victim will remain on medication forever and her life expectancy has been reduced as a direct result of his actions.
“I am pleased that Mabanda has received a significant custodial sentence today.”
West Midlands police subsequently circulated a second email quoting the complainant, parts of which were used in the The Sun and Mail stories.
Further to this release, please find below a statement from his victim, who wishes to remain anonymous:
“I am pleased with the sentence given to Mabanda today and that the judge recognised the seriousness of what he has done.
“I feel a combination of anger and relief. Anger at what he has done to me and potentially other women and relief because he has been punished for his actions.
“I think he should have been given life because that’s the sentence he has given to me.
“What he did has had a devastating impact and will affect me every day for the rest of my life, but now I want to move on.
“If anyone else recognises him because of the media coverage and they have been infected, they should go to the police and I will be there for them.”
She said: “He should have been given life because that’s the sentence he has given to me. He’s just scum. I hope he’s deported because I hate him.
“I’m on medication now for the rest of my life.”
And in the BBC interview she highlights that Mr Mabanda knew he was HIV-positive “before he came to this country.”
I have a great deal of compassion for the complainant, who also admits in the BBC interview that she knew nothing about HIV (including, obviously, how to protect herself) before she discovered from Mr Mabanda’s fiancée that she was at risk.
But there appears to be no attempt to understand how Mr Mabanda acquired HIV himself; continued to have multiple concurrent relationships; and felt unable or unwilling to either use a condom or disclose to most of the women he encountered. (Interestingly, though, he had disclosed to two of the ten women.) The only evidence of any kind of understanding of Mr Mabanda’s issues comes from Twitter.
Couldn’t agree more, Krystle.
US: (Update) Nebraska passes unscientific, stigmatising body fluid assault law
I’ve just learned via my colleagues at the Positive Justice Project in the US, that The Assault with Bodily Fluids Bill (LB226) introduced into the Nebraska State Legislature by Senator Mike Gloor recently passed into law with no amendments.
“The entire bill is hinged on gross ignorance about the actual routes and risks of HIV transmission,” says Beirne Roose-Snyder, staff attorney for the Center for HIV Law and Policy in New York City. “Nowhere in the nearly three-decades-long history of the epidemic has a corrections officer been infected by the routes described in the bill. As for serious misinformation, there is real harm caused to law enforcement staff who themselves may be living with HIV, and to those who are not but who are being sold an unsound bill of goods on how to protect themselves, by placing a legislative imprimatur on the unfounded fears about how HIV and other diseases are spread. It also clearly has a negative impact on the way people with HIV are treated in and out of the criminal justice system, and has resulted in people serving decades of time behind bars on the basis of ignorance and hysteria.”
This latest development is extremely disappointing, and suggests that the trend of passing new laws that inappropriately criminalise people with HIV (and, sometimes other blood-borne infections such as hepatitis B or C) in a misguided attempted to protect police or other public safety officers is not reversing.
This Friday, February 4th, the Nebraska State Legislature will debate The Assault with Bodily Fluids Bill which would criminalise striking any public safety officer with any bodily fluid (or expelling bodily fluids toward them) and includes a specific increase of penalty to a felony (up to five years and/or $10,000 fine) if the defendant is HIV-positive and/or has Hepatitis B or C.
The Bill ignores the fact that HIV cannot be transmitted through spit, urine, vomit, or mucus; punishes the decision to get tested for HIV; and will not keep public safety officers safer, but rather will reinforce misinformation and stigma about HIV.
2. Codifying the breach of doctor /patient confidentiality in Sec. 2(5) is extremely serious, and should not be undertaken with no public health benefit
It is extremely important for public and individual health for people with HIV to get tested at the earliest opportunity, start timely treatment, and stay on treatment. This all hinges on having a good relationship with their doctor or health care provider. Forcing doctors and health care providers to reveal private health information, or even testify about it, will have a negative impact on patient trust of the health care system and willingness to remain engaged in HIV care. The plain language in Sec. 2(5) would force any person charged under this statute to be tested for the identified viruses, or force the opening of their medical records for previous testing results.
The Positive Justice Project (PJP) has produced a set of talking points (download here) that summarises the problems with the Bill, and with HIV-specific legislation in general. PJP highlights that the wording of the Bill is so broad that it would allow for the following Kafkaesque situations:
If a person with HIV accidentally vomits in the direction of a medical officer in a prison infirmary, they could be sentenced to five more years in prison.
If someone accidentally sneezes in the direction of a police officer, a judge must grant a court order for their medical records and they may be subjected to involuntary HIV antibody and hepatitis B and C antigen testing if the police officer decides to press charges.
An inmate who spits or vomits in the direction of a corrections officer, even without hitting or intending to hit the officer, can be forcibly tested for HIV and hepatitis and if found to have any of these viruses, charged with a felony.
An adolescent with HIV or hepatitis held in a juvenile detention facility who spits while being restrained by a corrections officer, or while arguing with a guidance counselor, could wind up serving five years in an adult prison facility.
PJP asks anyone in the United States who cares about this issue to contact their State representative (using the talking points to highlight the many problems with the Bill) and specifically encourages any networks or individuals in Nebraska to contact:
State Senator Mike Gloor, who introduced the Bill. District 35 Room #1523 P.O. Box 94604 Lincoln, NE 68509 Phone: (402) 471-2617 Email: mgloor@leg.ne.gov
Sandra Klocke State AIDS Director Office of Disease Control and Health Promotion Nebraska Department Health and Human Services 301 Centennial Mall South, 3rd Floor P.O. Box 95026 Lincoln, Nebraska, 68509-5044 Phone: 402-471-9098- Fax: 402-471-6446 sandy.klocke@nebraska.gov
and/or
Heather Younger State Prevention Manager Disease Prevention and Health Promotion HIV Prevention Nebraska Department of Health and Human Services 301 Centennial Mall South Lincoln, Nebraska, 68509 Phone: 402-471-0362 heather.younger@nebraska.gov
UNAIDS announces new project examining “best available scientific evidence to inform the criminal law”
A new project announced yesterday by UNAIDS will “further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health.”
I’m honoured to be working as a consultant on this project, and although I can’t currently reveal any more details than in the UNAIDS article (full text below), suffice to say it is hoped that this project will make a huge difference to the way that lawmakers, law enforcement and the criminal courts treat people with HIV accused of non-disclosure, alleged exposure and non-intentional transmission.
The UNAIDS article begins by noting some positive developments previously highlighted on my blog, including Denmark’s suspension of its HIV-specific law. It’s not too late to sign on to the civil society letter asking the Danish Government to not to simply rework the law, but to abolish it altogether by avoiding singling out HIV. So far, well over 100 NGOs from around the world have signed the letter.
The article also mentions recent developments in Norway. In fact, the UNAIDS project is funded by the Government of Norway, which has set up its own independent commission to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people who are alleged to have exposed others, to, and/or transmitted, HIV. It will present its findings by October 2012.
As well as highlighting some very positive recent developments in the United States – the National AIDS Strategy’s calls for HIV-specific criminal statutes that “are consistent with current knowledge of HIV transmission and support public health approaches” and the recent endorsement of these calls by the National Alliance of State and Territorial AIDS Directors (NASTAD) – it also focuses on three countries in Africa.
Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.
I’d like to add a few more countries to the “positive development” list.
We believe that the use of criminal law in cases of HIV non-disclosure must be compatible with broader scientific, medical, public health, and community efforts to prevent the spread of HIV and to provide care treatment and support to people living with HIV. While criminal prosecutions may be warranted in some circumstances, we view the current expansive use of criminal law with concern.
We therefore call on Ontario’s Attorney General to immediately undertake a process to develop guidelines for criminal prosecutors in cases involving allegations of non-disclosure of HIV status.
Guidelines are needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner. The guidelines must ensure that decisions to investigate and prosecute such cases are informed by a complete and accurate understanding of current medical and scientific research about HIV and take into account the social contexts of living with HIV.
We call on Ontario’s Attorney General to ensure that people living with HIV, communities affected by HIV, legal, public health and scientific experts, health care providers, and AIDS service organizations are meaningfully involved in the process to develop such guidelines.
As well as providing an extensive and detailed overview regarding the current (and past) use of criminal and public health laws in its eight states and territories, it also provides the latest data on number, scope and demographics of prosecutions in Australia.
There have been 31 prosecutions related to HIV exposure or transmission in Australia over almost twenty years. Of those, a number have been dropped pre-trial, and in four cases the accused has pleaded guilty. All those charged were male, except for one of two sex workers (against whom charges were dropped pretrial in 1991). In cases where the gender of the victim(s) is/are known, 16 have involved the accused having sex with female persons (one of those cases involves assault against minors) and 10 involved the accused having sex with men. This suggests that heterosexual men, who constitute only about 15% of people diagnosed with HIV, are over-represented among the small number of people charged with offences relating to HIV transmission. Further, men of African origin are over-represented among those prosecuted (7 of 30), given the small size of the African-Australian community.
It then systematically examines, in great detail, the impact of such prosections in Australia.
These include:
HIV-related prosecutions negate public health mutual responsibility messages
HIV-related prosecutions fail to fully consider the intersection of risk and harm
HIV-related prosecutions ignore the reality that failure to disclose HIVstatus is not extraordinary
HIV-related prosecutions reduce trust in healthcare practitioners
HIV-related prosecutions increase stigma against people living with HIV
HIV-related prosecutions are unacceptably arbitrary
HIV-related prosecutions do not decrease HIV transmission risks
HIV-related prosecutions that result in custodial sentences increase the population of HIV-positive people in custodial settings
It notes, however, that
There is a narrow category of circumstances in which prosecutions may be warranted, involving deliberate and malicious conduct, where a person with knowledge of their HIVstatus engages in deceptive conduct that leads to HIV being transmitted to a sexual partner. A strong, cohesive HIV response need not preclude HIV-related prosecutions per se. Further work is required by those working in the areas of HIV and of criminal law:
To consider what circumstances of HIV transmission should be defined as criminal;
To define what measures need to be put in place to ensure that prosecutions are a last resort option and that public health management options have been considered; and
To ensure those understandings are part of an ongoing dialogue that informs the development of an appropriate criminal law and public health response.
That’s exactly the kind of policy outcome that UNAIDS is hoping for.
In the meantime, AFAO suggests some possible strategies towards policy reform. Their recommendations make an excellent advocacy roadmap for anyone working to end the inappropriate use of the criminal law.
Their suggestions include:
Enable detailed discussion and policy development
Develop mechanisms to learn more about individual cases
Prioritise research on the intersection of public health and criminal law mechanism, including addressing over-representation of African-born accused
Work with police, justice agencies, state-based agencies and public health officials
Improve judges’ understanding of HIV and work with expert witnesses
Work with correctional authorities
Work with media
I truly hope that the recent gains by advocates in Australia, Canada, Denmark, Guinea, Norway, Togo, Senegal and the United States is the beginning of the end of the overly broad use of the criminal law to inappropriately regulate, control, criminalise and stigmatise people with HIV in the name of justice or public health.
The full UNAIDS article is below. I’ll update you on the project’s progress just as soon as I can.
Countries questioning laws that criminalize HIV transmission and exposure
26 April 2011
On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.
A working group has been established by the Danish government to consider whether the law should be revised or abolished based on the best available scientific evidence relating to HIV and its transmission.
This development in Denmark is not an exception. Last year, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people transmitting HIV.
In the United States, the country with the highest total number of reported prosecutions for HIV transmission or exposure, the National AIDS Strategy adopted in July 2010 also raised concerns about HIV-specific laws that criminalize HIV transmission or exposure. Some 34 states and 2 territories in the US have such laws. They have resulted in high prison sentences for HIV-positive people being convicted of “exposing” someone to HIV after spitting on or biting them, two forms of behaviour that carry virtually no risk of transmission.
In February 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD), the organization representing public health officials that administer state and territorial HIV programmes, expressed concerns about the “corrosive impact” of overly-broad laws criminalizing HIV transmission and exposure. The AIDS Directors called for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.
Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV. Best available scientific evidence to inform the criminal law
These developments indicate that governments are also calling for a better understanding of risk, harm and proof in relation to HIV transmission, particularly in light of scientific and medical evidence that the infectiousness of people receiving anti-retroviral treatment can be significantly reduced.
To assist countries in the just application of criminal law in the context of HIV, UNAIDS has initiated a project to further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health. The project, with support from the Government of Norway, will focus on high income countries where the highest number of prosecutions for HIV infection or exposure has been reported.
The initiative will consist of two expert meetings to review scientific, medical, legal and human rights issues related to the criminalization of HIV transmission or exposure. An international consultation on the criminalization of HIV transmission and exposure in high income countries will also be organized.
The project will further elaborate on the principles set forth in the Policy brief on the criminalization of HIV transmission issued by UNAIDS and UNDP in 2008. Its findings will be submitted to the UNDP-led Global Commission on HIV and the Law, which was launched by UNDP and UNAIDS in June 2010.
As with any law reform related to HIV, UNAIDS urges governments to engage in reform initiatives which ensure the involvement of all those affected by such laws, including people living with HIV.
New Zealand: Charges dropped in criminal HIV transmission case
All charges against a Wellington man accused of not disclosing his HIV-positive status prior to unprotected sex with his female partner who subsequently tested HIV-positive have been dropped because police are unable to trace the complainant.
Not only did Justice Simon France drop the charges of “wounding with intent to cause grievous bodily harm” but also ordered that the man’s name be suppressed.
Jo Murdoch, a lawyer from the Public Defence Service, successfully argued in court that the man’s identifying particulars should be suppressed.
Justice Simon France said the issue became whether the man’s HIV status – a particularly private and sensitive medical fact – should be exposed when grave doubts had been raised about the alleged victim’s credibility.
The case did not have the public interest element of a person accused of having put multiple partners at risk or having risky casual sex. Also, the alleged crime was irrelevant to his employment and his contact with the public generally. Taken together the circumstances outweighed the usual principle that justice should be carried out publicly, Justice France said.
Police said he did not tell his partner he had HIV, the couple had unprotected sex and she contracted the disease. The man said his partner of several years knew of his condition and that they always had protected sex.
Shortly before the trial was due, information came to light which, if true, would have affected a court’s view of her honesty. Police were unable to find her and thought she was hiding from them. They had wanted to check the information before expensive tests to see if the couple had the same strain of HIV.
The Crown offered no evidence against the man, resulting in a discharge which amounted to an acquittal.
US: State public health officials condemn ‘stigmatising, harmful’ HIV-specific laws
NASTAD is a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US.
Its motto is: ‘Bridging Science, Policy, and Public Health’.
The message of their statement is simple: repeal these laws because
HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV.
In order to work towards the goal of repealing laws that create HIV-specific crimes or increased penalties for persons who are HIV-positive and convicted of criminal offences, NASTAD will
advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.
Further, NASTAD encourages its members to:
Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.
Todd Heywood of the Michigan Messenger reports that US HIV advocates – including the National Association of People with AIDS (NAPWA) and the Positive Justice Project’s Senior Advisor, Sean Strub – have warmly welcomed NASTAD’s statement. Read his report at the Michigan Messenger here.
NATIONAL HIV/AIDS STRATEGY IMPERATIVE: FIGHTING STIGMA AND DISCRIMINATION BY REPEALING HIV-SPECIFIC CRIMINAL STATUTES
The National Alliance of State and Territorial AIDS Directors (NASTAD), the organization which represents the public health officials that administer state and territorial HIV/AIDS and adult viral hepatitis prevention and care programs nationwide is gravely concerned about the corrosive impact of sustained stigma and discrimination on state, federal and local efforts to combat HIV/AIDS in the United States. The National HIV/AIDS Strategy (NHAS) provides an unprecedented strategic blueprint for reducing HIV/AIDS incidence through the scale-up of interdisciplinary, impactful prevention approaches. NASTAD acknowledges that the NHAS is not a magic bullet; however, the NHAS’ central vision of the U.S. becoming “a place where new HIV infections are rare” cannot be realized until the nation aggressively responds to the core of the matter: pervasive and unmitigated stigma and discrimination against people living HIV/AIDS that diminishes our best efforts to combat one of the greatest public health challenges of our time.
As a member of the Positive Justice Project, a coordinated national effort to address “HIV criminalization” statutes – laws that create HIV-specific crimes or which increase penalties for persons who are HIV positive and convicted of criminal offenses – NASTAD supports efforts to examine and support level-headed, proven public health approaches that end punitive laws that single out HIV over other STDs and that impose penalties for alleged nondisclosure, exposure and transmission that are severely disproportionate to any actual resulting harm. Steps identified to reach this goal in the Federal Implementation Plan include step 3.3, Promote public health approaches to HIV prevention and care which states that “state legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to screening for, preventing and treating HIV.” In addition, step 3.4, Strengthen enforcement of civil rights laws requires an examination and report by the Department of Justice on HIV-specific sentencing laws and implications for people living with HIV.
HIV criminalization has often resulted in egregious human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty- four states (34) and two (2) U.S. territories explicitly criminalize HIV exposure through sex, shared needles or, in some states, exposure to “bodily fluids” that can include saliva. Examples include:
A man with HIV in Arkansas was sentenced to 12 years (and must register as a sex offender after release) when he failed to disclose his status with his girlfriend and another woman – both women tested negative;
A man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom;
A woman with HIV in Georgia, who was sentenced to eight years imprisonment for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV positive status.
In none of the cases cited was HIV transmitted. In fact, most prosecutions are not for transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing stories about verbal consent that are nearly impossible to prove.
HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV. NASTAD members commit to examining existing public health policies related to HIV criminalization that may exacerbate stigma and discrimination and lessen the likelihood that individuals will learn their HIV status. NASTAD members will also continue to emphasize the importance of providing comprehensive prevention and care services for HIV positive individuals to help reduce the risk of transmission to others. In conjunction with new and existing partners, our members also pledge to:
Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.
NASTAD will continue to advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.
Approved by NASTAD’s Executive Committee: February 2011
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