Canada: Xtra publishes its anti-criminalisation piece-de-resistance

Just a week after Canada’s national gay paper, Xtra, published a radically anti-criminalisation interview on their website, Xtra.ca, comes their piece-de-resistance, Beyond the Courts: a smart, well-written and researched 5,000 word essay from queer Canadian writer/advocate Shawn Syms, whose previous writing on criminalisation and the HIV-positive/negative divide was equally insightful and thought-provoking.

In the piece – which will also be published in shorter form as the cover story of next month’s print edition of Toronto’s Xtra – Syms asks (and tries to answer) the question: How do we stop the spread of HIV without dividing our [unspoken HIV-positive versus HIV-negative and untested gay] communities?

Syms brings together many voices from Canada and abroad – including mine – to illustrate the “growing chorus of activists, civil-society advocates and community members [who are] rallying evidence to show that jailing people with HIV only quenches the individual and public thirst for retribution and blame—while failing to prevent onward HIV transmission.”

There’s much to recommend in the piece, but a few things stand out for me.

First, he turns the argument that the law protects HIV-negative people by punishing HIV-positive people for ‘victimising’ HIV-negative people on its head.

The media and police would have us believe that irresponsible people with HIV are out there victimizing others—but we should never forget that the reality is the other way around. People with HIV are an oppressed minority subject to frequent acts of discrimination by others who have power over them—including the accusers in criminalization cases.

Earlier in the piece, he explains how Canada’s criminalisation of HIV non-disclosure does this.

A vindictive person could use their knowledge of someone’s HIV status as a weapon against them. Many believe this is what happened last year in the case of “Diane,” a Montreal woman whose partner suddenly alleged she had not disclosed her HIV status once she pressed charges against him for domestic assault.

Some people with HIV have been threatened by people they’ve never even been intimate with. Fred Meikle of London, Ontario, says he had an exchange last year with an acquaintance in a gay.com online chatroom where the person stated, “I should call the police, tell them you didn’t disclose.” Meikle replied “We’ve never even had sex; you sat on my sofa and drank a beer.” He says the man replied, “Well, who do you think they will believe?”—highlighting the rift in social power between HIV-negative and positive gay men.

Understandably, this creates a climate of literal “terror” for people with HIV, says Angel Parks, Positive Youth Outreach coordinator for the AIDS Committee of Toronto (ACT). “This is spiraling out of control,” she says about the upswing in criminal charges. At a recent forum in Ottawa in June, she reports, people with HIV from across the country responded to the criminalization threat with “fear, shame, humiliation, and most of all confusion.” And at the weekly support group she coordinates, “individuals are scared… they don’t know to protect themselves” from the risk of bogus charges.

Now, Syms is not saying that all charges are bogus, but that the law as it had been created and is currently practised by the criminal justice system, is open to abuse. That relatively few cases have involved sex between men is irrelevent. It is the climate of fear and mistrust (on both sides) that worries him (and me).

He analyses this further later in the piece, when he rips apart the too-commonly-believed gay community myth that HIV only affects “hardcore risk takers” whose unbridled ‘barebacking’ turns them into “sexual predators.”

The common perception goes something like this. HIV is extremely dangerous, inevitably fatal and not that hard to get. People with HIV have an obligation to tell all partners before any sexual activity at all—because it’s not possible to consent to sex without knowing if the other person has HIV.

To this way of thinking, anyone who doesn’t disclose is dishonest, untrustworthy and probably addicted to barebacking—after all, if their sense of ethics and responsibility were not so obviously lacking, they wouldn’t have contracted the virus in the first place. And someone like that wouldn’t think twice about giving someone else HIV, on purpose. So the solution is to avoid these people, like the plague.

[…]

But gay men haven’t done a good job of passing on the harm-reduction message to new generations, says Richard Berkowitz, one of the originators of safe-sex education in 1983 and subject of the recent documentary Sex Positive. “Today, even progressive gay people fall into the trap of imagining that we are talking about sexual predators who deserve to be locked up.”

The perspective Berkowitz points out hinges upon seeing negative and positive gay men as fundamentally different from one another. This is a mistake, noted Sigma Research’s Ford Hickson in an address to a UK sexual health conference in March. What most often distinguishes positive and negative guys is not ethics or behaviour, but bad luck.

“HIV risk is widespread. It is not the case that a small group of hardcore risk takers account for the new infections,” said Hickson. “The transmissions that occur over the next year will be the unlucky ones in a large population each taking a few risks.”

Finally, he follows the lead of last week’s Xtra interviewee, Bob Watkin, the outgoing Chair of the HIV and AIDS Legal Clinic of Ontario (HALCO), asking readers to get “angry and loud.”

As Justice Cameron of South Africa told those assembled at the Canadian HIV/AIDS Legal Network’s recent symposium, “some of the Canadian cases are so outrageous, I have wondered why there weren’t protestors outside the courtroom with t-shirts and placards and activists shouting inside the court room. Have you lost your activist fervour?”

Cameron is right. We need to rekindle the queer rage and sense of injustice that fuelled historic LGBT protests, from the response to the bathhouse raids, to the efforts of Gay CourtWatch in the eighties to protect gay men busted on sex-related charges, to the beginnings of the original AIDS activist movement.

And we need a coalition of negative, positive and untested queers and allies to carry out this effort. Criminalization is an extreme manifestation of HIV stigma—and it shouldn’t be only people with HIV who put themselves on the line to fight it. With tools ranging from placard and megaphones to Facebook and Twitter, we need to combat the abuses of the police, the justice system and the media, and demand access to appropriate testing resources and consistent and high-quality sex education for all, regardless of HIV status.

Kudos to Syms, and to Xtra‘s editorial director, Matt Mills, for this piece: the best I’ve seen yet on the issue as it relates to gay men in Canada (and light years ahead of how New Zealand’s gay press is dealing with the issue).

Read the full piece on Xtra.ca.

Canada: ‘Enough, this is it, no more’ says advocate

Today, Xtra.ca has an extraordinary interview with Bob Watkin, the outgoing Chair of the HIV and AIDS Legal Clinic of Ontario (HALCO), that illustrates just how oppressed and under seige some HIV-positive Canadians (particularly gay men knowledgable about the law) are feeling about the approach of the criminal justice system to HIV non-disclosure before sex.

He is angry. So angry that he makes some pretty radical statements, including attacking his own!

One of those things [I disagreed with] is the way HALCO’s Ontario Working Group on Criminal Law and HIV approached the issue of HIV criminalization. Its position that criminalization — criminal charges against HIV-positive people for failure to disclose their serostatus to sex partners — may be called for in some instances is anathema to me. I will not accept it or agree with it.

I’ve read the Working Group’s position statement several times (and know and respect many of the people involved in the Group), and I can’t see anything in it that supports criminal charges for non-disclosure. It’s main message is: “The criminal law is an ineffective and inappropriate tool with which to address HIV exposure.”

He also suggests that anyone accused of non-disclosure engage in a one-person act of civil disobedience.

I’m suggesting to HIV-positive people that, if they find themselves charged in connection with failure to disclose allegations, they exercise their legal right to refuse to give statements that could end up being used against them in criminal court, that they should no longer cooperate with anyone, anywhere, anytime, or answer any questions about their sexual conduct…I’m not suggesting that anyone act irresponsibly. What I’m saying is it doesn’t matter what your actions are.

That this interview appears in a national gay forum, rather than one solely aimed at HIV-positive individuals, is remarkable (and brave not just of Bob Watkin, but also Xtra‘s editorial director, Matt Mills), but also somewhat problematic. If the pattern follows that of the UK, the majority of HIV-negative gay men support prosecutions, and even amongst HIV-positive individuals the sides are not clear-cut. Hence the rather strong comments (two so far, but it’s only just been published) from readers.

There’s no doubt in my mind that Canada (and Ontario in particular, where non-disclosure is now being charged as attempted murder ) is the front line in the fight against the criminalisation of HIV non-disclosure, exposure and transmission. What happens there may well determine the future for many other wealthy, low-prevalence countries with similar legal systems. The lines in the sand have been drawn, and Bob Watkin (and Xtra – which covers this issue almost every week: see also ‘Finding a way out of the HIV criminalization loop’ from September 10) is issuing a call to arms.

Below are highlights of Bob Watkin’s interview with Matt Mills.

I cannot condone in any way the conduct of anyone that results in someone else being infected. But there is no justification at all — anyway, anywhere, anyhow — for the criminalization of HIV and AIDS.

[…]

What led us to this point is an abject failure of the public health system and its proven inability to deal with a chronic long-term disease, HIV…It may be very difficult for people to accept being locked up by public health but it’s much better to be locked away, treated and educated in a medical setting, than to be locked in a prison.

[…]

The charges boil down to allegations. There is no other evidence that is really relevant. In all of these situations, no one disputes that the sex occurred. Two people make an irresponsible decision, one of them happens to be HIV-positive. Only one of them is absolved and that just isn’t right.

All this has created an environment in which people are not getting tested. They are afraid to know. People who have means are leaving the country, getting tested elsewhere and in fact getting treatment elsewhere, so they don’t leave evidence of their HIV status.

We as HIV-positive people have to say, “Enough, this is it, no more.” Unless we start saying that as a group we’re just going to find our lives become more and more and more dreadful.

Switzerland: New study examines every criminal prosecution; finds Swiss law discriminatory

A new and important study of criminal HIV exposure and transmission cases in Switzerland was published yesterday.

Update: An English-language version of the Swiss AIDS Federation’s six page summary is now available. Download the pdf here.

With the support of Swiss National Science Foundation (see the press release in French and German) and the Swiss AIDS Federation (AIDS-Hilfe Schweiz/AIDS Suisse Contre Le SIDA), researchers Kurt Pärli and Peter Mösch Payot examined 39 individual cases dealt with in 51 separate cantonal (lower and higher) and federal court hearings between 1990 and 2009.

Of the 27 accused where country of origin was known, 11 were born in African countries; 9 were born in Switzerland; 4 were born elsewhere in Europe; 2 were born in Asia and the near East; and one was born in the US.

Three cases did not involve sex. One case involved a doctor who disclosed the HIV-positive status of one of his patients; another case involved the Red Cross and contaminated blood; and the third one involved biting.

The remaining 36 cases involved sex – 31 heterosexual sex, and five sex between men. All but three of these 36 sexual cases involved consensual sex (as opposed to rape or sexual assault).

[Note: the only English-language report so far gets this wrong, saying that all 36 cases took place with the informed consent of the victim. That’s the problem with laws like these: in this case “consensual” means both parties agreed to have sex, and not that the HIV-positive partner had disclosed prior to sex.]

Admittedly, it is a bit complicated, since it is possible to be prosecuted for consensual, unprotected sex with disclosure under Article § 231 (spreading of dangerous diseases). In 21 cases, this law was used. Consequently, in more than half of the convictions there was no transmission of HIV, simply ‘HIV exposure’. Most prison sentences ranged between 18 months and 4 years, plus a fine of up to CHF 80,000 (c. €53,000) as compensation to the ‘victims’. The report authors point out that these sentences are longer than for other (non-HIV-related) ‘crimes’ charged under this statute.

Below is the table of cases (and scenarios discussed in court) adapted from the report.

Unfortunately, the impressive 149-page paper (complete with comparisons with other jurisdictions) is only available in German (this is the link to the complete pdf; 1.4MB ). A six-page fact sheet from the Swiss AIDS Federation summarising the findings is also available in German (and now English).

The authors conclude by recommending the repeal of Article § 231, because, they argue, the law is discriminatory by unfairly placing 100% responsibility on the HIV-positive partner which is in direct contradiction with public health policies.

[Many thanks to my native German-speaking partner, Nick, for helping me understand the paper.]

US: Padieu case gets the 20/20 treatment; phylogenetic analysis totally misrepresented

The case of Philippe Padieu, the French-born Texan found guilty in May 2009 on six counts of aggravated assault with a deadly weapon and sentenced to 45 years for five counts and 25 years for the remaining count – all of which run concurrently – was featured last Friday night on US ABC TV’s tabloid-style news magazine, 20/20.

Five and half million viewers watched as Mr Padieu faced trial by media yet again. All six parts of the one hour show (actually 39 minutes minus commercials) are available to watch online.

Part 1: Women recall HIV criminal’s allure
Part 2: HIV diagnosis rocks women’s lives
Part 3: Women take matters into own hands
Part 4: HIV serial dater faces victims in court
Part 5: Man convicted of HIV crime speaks
Part 6: Women want case known to protect others

It’s basically sold as the story of a group of scorned women uniting to put Mr Padieu behind bars, summarised beautifully by the accompanying story on the ABC news website headlined, ‘How Women United to Stop HIV-Positive Man, Women’s Horror at Diagnosis Replaced With Mission: Stop Man From Infecting Others.’

There’s so much I could say about the show, which is something of a milestone in criminal HIV transmission reporting in the mainstream media, but I’m going to limit my comments about the very worrying misrepresentation of phylogenetic analysis as ‘proof’ that Mr Padieu was the source of all the women’s HIV infection. Perhaps blog readers could fill in the comments sections with insights and criticisms of their own about this programme.

[Update: Catherine Hanssens of The Center for HIV Law and Policy has some terrific comments and insights in her Sept 29th blog post.]

In Part 4 of the show, presenter/journalist Elizbeth Vargas says that it was Mr Padieu’s “own DNA” that proved he was guilty. But phylogenetic analysis is all about testing the genetics of HIV, not the individual. They then showed one of the US’s foremost experts in HIV forensics, Dr Michael L Metzker, of Baylor College of Medicine, Houston, Texas, who testified for the prosecution that Mr Padieu’s virus was extremely similar to that of the six women. Except here he says definitively that Mr Padieu was “the source” of the six women’s HIV. I’ve written about the limitations of phylogenetic analysis many times: the issues are summarised here.

In the final part of the show, we are introduced to ‘Lisa’ who dated Mr Padieu in 1997, and was diagnosed HIV-positive that same year. The show gives Dr Metzker a sample of Lisa’s blood and he says that “preliminary analysis” suggests that Mr Padieu was the source of all seven women’s HIV infection. The show concludes that Mr Padieu “gave Lisa HIV in 1997” and goes on to suggest, without a shred of evidence, that he had been diagnosed earlier than 2005 and knowingly infected Lisa and possibly hundreds of other women.

I’m extremely disappointed in Dr Metzker for totally misrepresenting what phlyogenetic analysis can prove. It is impossible to conclude, given the many limitations of phylogenetic analysis, that Mr Padieu infected Lisa in 1997. It is, in fact, just as possible that Lisa infected Mr Padieu.

I don’t expect 20/20 to explain the science (in fact, I expect them to get it wrong), but I do expect Dr Metzker, who is (was?) considered to be a respected scientist, to be less definitive about his conclusions. Maybe Dr Metzker would like to explain how he could be so sure – it would be very helpful to know if he has developed new, as yet unknown, techniques in phylogenetic analysis that can definitively pinpoint timing and direction of transmission.

US: Gay Iowa man who faced 25 years for HIV exposure released from jail (updated)

Update: 17th September. Nick Rhoades was interviewed by Lynda Waddington in the Iowa Independent. He was released last Friday (11th) following a reconsideration hearing that had been allowed by District Court Judge Bradley Harris during Mr Rhoades’ sentencing.

He is courteous and remorseful to the complainant in his case.

“There is no denying the fact that there was a victim involved and that [this] derailed his life for several months of uncertainty,” said Rhoades, referencing the consensual encounter he had with another man in early summer 2008 that led to his ultimate conviction.

“It’s something that I think anyone who is infected has been through. It’s frightening — not only for him, but for his family and friends. It disrupts everything in your life while you are going through that time of just not knowing. It can be terrifying. I know what it was like, and I never would have wished it on anyone else. So, I do understand exactly why he would feel the way that he did and does.”

But he also questions the 25 year sentence handed down four months ago that gave him “a taste of prison”.

“When compared to other crimes and other laws on the books, it seems [my sentence was] a stiff penalty — especially considering the fact that it wasn’t considered a violent crime, that it was a consensual situation between two adults and that there was no infection [of the victim] showing up to this day,” he said. “It does seem that 25 years is excessive to me.”

He also says that although he has been humiliated by his HIV status being plastered all over the media, it is also somewhat liberating.

“It is the most stigmatized medical condition that I can think of,” said Rhoades, adding how humiliating it was for his status to be “strewn across the media” and become fodder for the gossip mill….“In some ways this has been liberating,” Rhoades said, indicating that before the court case he had only openly shared such private portions of his life with family and close friends. “I’m not at all proud and I do take responsibility for my own actions and mistakes. But there is no denying that it is all out there now.”

Original post: Sept 16th. Breaking news. An HIV advocate working to release Nick Rhoades, 34, from prison after he was sentenced in May to 25 years for HIV exposure following a one-night stand with another man, has just informed me that Mr Rhoades is out of jail!

The advocate, Donald Baxter, tells me in an email:

We wrote letters to the judge and something must have clicked—his “victim” wasn’t even allowed to give a victim’s impact statement. Nick still has a long hard row—five years probation, sex offender registry, unsure career future/path. But at least he’s not stuck in jail for 25 years.

Mr Baxter was co-incidentally featured in the Iowa Independent yesterday, arguing against Iowa’s draconian HIV-specific laws.

“I think the law we have here is a sledgehammer that is mostly looking for a thumbtack. I think the latest thumbtack was Nick Rhoades,” Baxter said in reference to a Black Hawk County case earlier this year where a 34-year-old man was sentenced to 25 years in prison following a one-time consensual encounter that did not result in transmission.

“I get no impression from him other than the fact that he is probably a 34-year-old man who is not a paragon of responsibility. He obviously has had some substance abuse issue, which is actually pretty common in the gay community. He is not a criminal, and his sentence angers me on a couple of fronts. He’s probably never transmitted HIV to anybody, let alone the person who made this complaint against him. As a taxpayer in the state of Iowa I also realize that we are probably spending between $65,000 and $70,000 per year to keep him behind bars. That pisses me off. That would piss me off if I weren’t HIV positive.”

I’ll update again with more details when I get them.

US: Georgia judge branded ‘too lenient’ after 18 month sentence for cop biter

An Atlanta judge who sentenced an HIV-positive man to 18 months in prison after pleading guilty to aggravated assault and battery for biting a policeman has been branded too lenient.

The assistant district attorney had recommended a “more appropriate” 15 years because during the bite the man told the cop, “I have AIDS…you are going to die”.

In a long analytical article that appeared in last week’s Atlanta Sunday Paper, not once is there any mention of the lack of possiblity that HIV could have been transmitted during the bite. Instead, the article takes it for granted that the biter’s words were a literal and real threat – as real as a shooting or stabbing.

Tom Clegg, a former DeKalb County assistant district attorney who [previously] prosecuted [the HIV-positive man], who is deaf, [said of Fulton County Superior Court Judge Marvin] Arrington’s sentence… “I think it is very lenient, especially in light of [the] comment, ‘You are going to die.’ Whether he succeeded in infecting him or not, 18 months in jail is a gift.” Clegg says the assistant district attorney’s recommendation of 15 years with six to serve was more appropriate. “What if he had shot the cop? What if he had stabbed the cop? Frankly, I think most police officers would rather be shot than to have to suffer having a terminal illness,” he says. “The sentence is extraordinarily lenient.”

As is typical of these cases, the article also focuses on the pain, worry and anti-HIV drug side-effects that Officer Andrew Fincher suffered following the bite.

During the past year, Fincher, who tests negative for the disease, has endured a harsh HIV drug regimen, which Grady Hospital’s Dr. Jeffrey Salomone says was administered as a precaution. While Fincher suffered through drug side effects including nausea, diarrhea and extreme fatigue, always worried that the next test would show he had HIV, he willed himself to look forward to the day when the offender, [man’s name], 42, would be sentenced to a long stay in jail.

However, Judge Arrington, despite another article in the same paper claiming he is far too liberal to serve as a judge, did not reduce the sentencing due to his understanding of the reality of the miniscule risks of HIV transmission in this case. Neither was it because he appreciated the fact that in moments of stress and fear, people with HIV sometimes feel they have to use the stigma of HIV as a weapon to defend themselves, even whilst knowing that HIV itself is no more effective than a water pistol when used as an actual weapon.

Rather, in an email to the paper, the judge defends the 18 month sentence by claiming that no credible evidence was presented about the HIV-related aspect of the case.

“The State reported that when the defendant bit the officer, the defendant screamed something to the effect that he had full-blown AIDS and the officer was going to die (the transcript is not yet prepared so this is a mere approximation). Defense counsel cast doubt on that statement because there is no mention of any such statement in the police report or any of the discovery packet. A statement of that magnitude, defense argued, would have surely been included,” says Arrington via e-mail.

So, Judge Arrington ignored that fact that the man had HIV and sentenced him as he would have an HIV-negative cop-biter.

That, I believe, is ultimately fair; and that kind of equal treatment (regardless of the reasons for it) is what I ask of courts and judges everywhere.

Update: October 4th. Judge Arrington has written a two page letter responding to the paper’s criticism, which has been rebuked by the editor.

Canada: Two more arrests as Xtra analyses criminalisation laws

In the past few weeks, there have been two further arrests in Canada for sex without condoms and disclosure. In Alberta, a 32 year-old Calgary man faces eleven counts of aggravated sexual assault based on a short-lived relationship he had with a woman over a couple of weeks: he was charged for each time they had sex. And in Ontario, police issued a warning/’fishing expedition’ to women who may have had sex with a 32 year-old Peel man who they arrested and charged with aggravated sexual assault and sexual interference for having sex with someone under-age.

In the first of two articles to be published in Canada’s GLBT paper, Xtra, Dale Smith examines the issues facing HIV-positive Canadians (including those who may be unaware they are infected) as arrests and prosecutions continue unabated.

The Xtra article includes interviews with Alison Symington, senior policy analyst with the Canadian HIV/AIDS Legal Network; Glenn Betteridge, a legal and policy analyst who has done work with the Ontario HIV Treatment Network; Isabel Grant, law professor at the University of British Columbia; and Barry Adam, senior scientist and director of prevention research with the Ontario HIV Treatment Network.

Highlights include these quotes:

“Canada was one of the first countries to start laying charges with respect to HIV exposure or transmission. It was the first Supreme Court in the world that had ever considered the issue.”

Alison Symington on Canada’s role as world leader in criminalisation.

“We’re starting to understand more and more about the likelihood of transmission of HIV, and it’s not as high as I think some people assume that it is. Particularly if there’s anti-retroviral medications, it’s not immediately obvious that one act of sexual intercourse is likely to cause someone’s death. I think it’s a real stretch to make this murder, not only on policy grounds, but also on the narrow interpretation of Section 231.”

Isabel Grant on the lack of relevance between sexual HIV transmission and Section 231, which says that death as a result of aggravated sexual assault becomes first-degree murder.

“My worry is that the courts’ fixation on the issue of disclosure presumes that they’re discouraging transmission, but I don’t think that it works out in real life quite the way they think it does. People who disclose actually have a poorer record of safe sex than those who don’t, and [that] makes a certain amount of sense because disclosure is about trying to figure out if you can sero-sort or not, to find out if the other person is the same sero-status that you are. It becomes an invitation for unsafe sex.”

Barry Adam on why mandating disclosure is harmful.

“The law says that if you are suspicious, and you deliberately close your mind to the possibility of finding out, that’s considered wilful blindness and we treat you the same way as if you know. In this context, let’s say I’m not going to get tested for HIV because I really don’t want to know if I have it, because then nobody can charge me for passing it on. If that suspicion arises in your mind, and you deliberately close your mind to finding out, the law says you’re just as blame worthy.”

Barry Adam on not testing to avoid prosecution.

To read the full article on the Xtra website, click here.

Africa: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

I received an email last week from Miriam Mannak, a freelance writer based in Cape Town, South Africa who keeps on blog on AIDS in Africa. She recently contributed this excellent piece on the spectre of criminalisation on her continent to the Inter Press Service News Agency, whose mission is to give voices to the voiceless.

 

AFRICA: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

CAPE TOWN, Jul 30 (IPS) – In Sierra Leone, a mother who transmits HIV to her child can be fined, jailed for up to seven years, or both. Human Rights Watch reports that in 2008, several men were arrested in Egypt simply for being HIV positive. New legislation is currently being discussed in Angola that could lead to a three to ten year jail sentence for those who knowingly pass on HIV.

The legislation is inspired by a September 2004 workshop organised by the influential reproductive health organisation Family Health International developed an “African Model Law” intended to protect those who are infected and exposed to HIV.

But various civil society organisations fear that these legislative measures will hurt more than help the fight against HIV/AIDS.

Discourages testing, delays treatment

“If being HIV positive is being regarded as a crime, people will be less likely to get themselves tested,” said Johanna Kehler, director of the Aids Legal Network (ALN) – a South African non-governmental organisation that aims to protect the human rights of people living with and affected by HIV/AIDS.

“This means that they are more likely to spread the disease unknowingly, and will not have access to antiretrovirals that may help to prolong their lives.”

Jennifer Gatsi Mallet – coordinator of the Namibian branch of the International Community of Women Living with HIV/AIDS (ICW), a global network run for and by HIV positive women – agrees with Kehler’s statements.

“The criminalisation of HIV will be yet another reason why people will stay away from testing facilities and clinics,” she said.

The International Planned Parenthood Federation, a global organisation that advocates sexual and reproductive health and rights, counts 58 countries around the world with laws in place to prosecute HIV transmission and 33 others that are considering passing such legislation. Of these, twenty are in Africa.

Women lose more

“Women will be the first ones in line to be prosecuted, as they are more likely to know their status compared to men, simply because they visit clinics more often, for instance during and after their pregnancy,” Kehler explained.

Gatsi Mallet added that in “many parts of Africa, clinics and men are like water in fire. While some accuse health facilities of being unfriendly to men because most of the health care workers are female, others consider visiting as unmanly, especially when it comes to HIV and other sexual related transmitted diseases,” she added.

“They therefore rather prefer to go to traditional healers, whom are in general more male orientated.”

Because women are more likely to discover they are HIV positive, their male partners often blame them for bringing the virus home – regardless of the fact that the infection may well have travelled the other way.

“Women across the world, including in Africa, experience difficulties negotiating safe sex,” Kehler said. “If a man does not want to use a condom, they often are left with no choice.”

Angela from Cape Town, who requested anonymity – contracted the virus a few years ago. “I never had sex with anyone else but my husband, but I suspected that he was sleeping around. I just knew. So sometimes I asked him to use a condom, but he always blatantly refused,” she explained.

“He said that a wife is supposed to trust her husband. When I went for prenatal care two years ago, I was told I was HIV-positive. After confronting my husband, he accused me of sleeping around and of infecting him. He threw me out of the house.”

In countries like Egypt, such an accusation could lead to prosecution. The same is true in Togo, where HIV-positive people are prohibited by law from having unprotected sex, regardless of whether they have disclosed their status to their partner.

“In case of prosecution, women are left in a terribly vulnerable position, as many do not have the resources to, for instance, prove that they were HIV negative before intercourse,” Kehler noted. “Neither can they prove if they did not do it deliberately.”

Laws against mother to child transmission (MTCT) should also be banned, the ALN argues.

An HIV-positive mother can pass the virus to her child during pregnancy, whilst giving birth, or through breast feeding. Of the 370,000 cases of MTCT each year, about 90 percent occur in Africa, according to UNAIDS.

In countries like Guinea, Guinea-Bissau, Mali and Niger, a mother can be criminally charged if she does not take steps to prevent HIV transmission to baby, including taking antiretrovirals during the pregnancy.

MTCT is almost entirely preventable, by taking antiretrovirals and giving birth in a sterile environment. Breast feeding poses certain risks: WHO studies indicate that a mother who is HIV positive risks passing the virus on to her child. But in certain situations – for example where a mother does not have access to clean water to mix formula and sterilise bottles, but is on antiretrovirals – exclusive breastfeeding is recommended.

Formula-fed babies in developing countries are six times more likely to die from diseases like diarrhoea and respiratory infections than breast-fed babies, according to WHO.

“The problem is that many African women do not have access to proper health care facilities and cannot afford formula,” Kehler said. “These are things governments should provide. If they fail, they should be the ones that are to be held accountable for MTCT.”

SIDEBAR: Who’s responsible for MTCT?Chantelle Heunis* from Overcome Heights – an informal settlement near Cape Town – was infected by her now ex-husband with the disease in 1999. At the time she was pregnant with her second daughter.

“I only found out after my baby was three months old, after I went for a check-up as she was ill due to lactose intolerance. The nurse offered to test me for HIV – which was not a routine procedure back in the days. The results came back positive.”

The next step was to test the baby. “It was dreadful, but thank god she was found HIV negative,” Heunis said. “She is ten years old now, and as healthy as can be.”

According to Heunis, it should not be allowed for women to be punished for MTCT. “I was lucky because I was in good hands, but many women do not have this privilege. They transmit the virus through unhygienic birthing practices, for instance, or because they do not have access to ARVs to prevent MTCT.”

She also rejects the notion that HIV positive women should not be allowed to have children. “It is within our rights to have children. Besides, if a mother is HIV positive, that does not mean the baby is also.”

* not her real name.

US: Pregnant woman whose sentenced was doubled ‘to protect unborn child’ wins appeal

The HIV-positive pregnant woman from Cameroon whose sentence was doubled to ‘protect her unborn child’ and which caused a furore in May, was yesterday resentenced to 114 days, or time served, for having a fake Social Security card and work permit.

The woman was freed on bail in June and won her expedited appeal in July.

According to the Bangor Daily News, the 28 year-old

wept Tuesday as U.S. District Judge John Woodcock imposed the sentence her defense attorney and a federal prosecutor had recommended jointly on May 14 at her original sentencing in federal court in Bangor. “I just want to say that a lot of people who have gone through a lot for me are here today,” she told the judge Tuesday. “I am grateful for their time and support. I want to say, God bless America.” […] Alexa Kolbi-Molinas, a staff attorney with the American Civil Liberties Union Foundation in New York City, attended the resentencing in Portland. She criticized Woodcock’s original sentence outside the courthouse. “It was inappropriate for our client to have received a long sentence solely because she was HIV-positive and pregnant,” said Kolbi-Molinas, a staff attorney with the ACLUF’s Reproductive Freedom Project. “So we’re very pleased with the result. “The widespread support in favor of a reversal of the sentence shows that we are no longer a society which incarcerates the sick and the poor because they are sick and poor,” she said.

The woman is due to give birth later this month.

New Zealand: ‘HIV predator’ case increases testing and stigma

Following the intense media reporting of the alleged ‘HIV predator’ case, the New Zealand AIDS Foundation reports that the case has increased stigma against people already living with HIV, and also increased the number of people coming forward for HIV tests.

The New Zealand Herald quotes NZAF’s national communications co-ordinator Dawn O’Connor.

“While people in New Zealand are aware of the need to get tested the media interest has created a stigma and discrimination against people living with HIV,” she said yesterday.

It then goes on to try and assess the number of HIV tests taken up since the man’s name and photo was released last month.

The NZAF would not say how many tests it had carried out, “out of respect for its clients and their right to confidentiality”, but confirmed a marked increase in demand for HIV testing and counselling compared with this time last year. […] HIV support group Body Positive said 25 to 30 people had now been tested. Craig Webster, a social worker for the agency, said calls continued to come in from all over the country, averaging five to 10 per day.

It’s a conundrum that challenges those who argue that criminal HIV exposure and transmission laws and media reports of prosecutions increase HIV-related stigma and, therefore, have a negative effect on testing.

From the research I’ve been reading and digesting recently, there really is no proof at all that criminal laws or media reports about prosecutions dissuade people at high risk of HIV from taking an HIV antibody test. Although in some cases they might actually persuade some people to test, and in others, may dissuade someone who is highly aware of their actions and the legal repercussions not to test, their aggregate effect on testing is probably neutral.

A colleague who studies the behaviour of people with, and at risk of, HIV in the UK said to me recently that claiming that criminal laws and prosecutions put people off from testing “ascribes too much cool calculation to people who are generally getting on with their lives, and not wanting to think much about HIV.” I think she’s right: there are plenty of reasons why people don’t test for HIV but for most people, worrying about being arrested doesn’t register on the radar at all. HIV is already so stigmatised that the additive effect of being criminalised once you know your HIV-positive status is unlikely to be a significant deterent. This suggests to me that the links made between stigma and testing are perhaps not quite as straightforward as some advocates argue.

However, there is no doubt that for people already diagnosed with HIV criminalisation palpably increases the stresses and fears of living with HIV – and adversely affects their decisions to disclose and take sexual risks – but that is not necessarily the same as putting people off testing.

If anyone knows of studies from outside of the US (I am aware of two: Burris et al, 2007 and Wise 2008) and the UK (summarised in Chalmers 2008) that measure the impact of criminalisation on HIV testing, please let me know!