Global: UN ‘Criminalisation undermines the Human Right to Health’

One of the most significant documents produced so far on the criminalisation of HIV non-disclosure, exposure and transmission was published today by the United Nations.

It is a report by Anand Grover, the UN Special Rapporteur on the Human Right to Health, specifically the right of everyone to enjoy the highest attainable standard of physical and mental health.

His report highlights the many human rights arguments against the use of the criminal law to prosecute anything except the intentional (i.e. proved beyond a reasonable doubt in a court of law that transmission was intended and malicious).

It begins with a very forceful statement.

… the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health. The criminalization of HIV transmission, or behaviours around transmission, is generally recognized as counterproductive, and should be reconsidered in the context of any comprehensive HIV/AIDS response framework.

It then examines the various ways that HIV transmission has been criminalised around the globe before examining the effect on the right to health. It ends with a bang, too.

Informed individuals take steps to prevent HIV transmission irrespective of criminal laws around transmission, and there is little evidence that specific laws criminalizing HIV transmission deter or modify the behaviour of individuals. With little benefit demonstrated in terms of achieving the aims of the criminal law or public health, and a corresponding risk of alienation, stigmatization and fear, it is difficult to see why the criminalization of HIV transmission is justified at all. Laws that are unnecessarily punitive will undermine any public health response to HIV, rather than assist it.

The entire document also includes an examination on the criminalisation of same-sex behaviour, sexual orientation and gender identify as well as sex work, and can be downloaded in full from the Office of the High Commissioner for Human Rights.

For your convenience, I have included pretty much the entire section on the criminalisation of non-disclosure, exposure and transmission below, complete with paragraph numbers, for easy quoting.

A webcast of Mr Grover’s 13 minute speech to the UN General Assembly can be found here. Disappointingly, just one minute is dedicated to the criminalisation of non-disclosure, exposure and transmission (at 2:24).

Nevertheless, this report, and Mr Grover’s speech, is significant in the history of criminalisation, and should be considered a major victory for anti-criminalisation advocates around the world.

Now, we just have to remind our goverments and policymakers to heed his words…

United Nations General Assembly

Human Rights Council

Fourteenth Session

A/HRC/14/20

27 April 2010

Agenda item 3

Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover.

HIV transmission

51. The Special Rapporteur notes that the criminalization of HIV transmission has formed a part of the global response to the HIV/AIDS crisis since its inception. Unfortunately, the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health. The criminalization of HIV transmission, or behaviours around transmission, is generally recognized as counterproductive, and should be reconsidered in the context of any comprehensive HIV/AIDS response framework.

Effects of criminalization on the right to health

No impact on behaviour change or HIV spread

62. The Special Rapporteur notes that criminal laws that explicitly regulate the sexual conduct of people living with HIV have not been shown to significantly impact on sexual conduct, nor do they have a normative effect in moderating risk behaviours. Criminal law does not influence the circumstances in which most HIV transmission occurs. In many regions, the majority of people living with HIV are unaware of their positive status and most cases of HIV transmission occur through consensual sex. Private sexual conduct invariably persists in the face of possible prosecution, but when prosecution actually occurs, these behaviours are driven underground, providing less opportunity for regulation and inhibiting access to preventive activities, diagnostic services, treatment and support.

Undermining existing public health efforts

63. Criminalization of HIV transmission or exposure places legal responsibility for HIV prevention exclusively on those already living with HIV, undermining the notion of shared responsibility between sexual partners, and potentially creating a false sense of security amongst those who are HIV-negative.86 Criminalization also has the potential to discourage HIV testing, which is a core component of successful HIV/AIDS health initiatives. An additional barrier to access to services could be manifested through increased distrust in relationships with health professionals and researchers, impeding the provision of quality care and research, as people may fear that information regarding their HIV status will be used against them in a criminal case or otherwise. As the prevalence of high-risk sexual behaviour is significantly lower in individuals aware of their seropositive status, any laws that discourage testing and diagnosis have the potential to increase the prevalence of risky sexual practices and HIV transmission.

Disproportionate impact on vulnerable communities

64. In jurisdictions where HIV transmissions have been prosecuted, of the very few cases that are prosecuted out of the many infections that occur each year, the majority have been noted to involve defendants in vulnerable social and economic positions. Although laws criminalizing HIV transmission and exposure were, on occasion, enacted to provide women with greater protection, applying these laws broadly has also resulted in women being disproportionately affected. For instance, a woman was prosecuted under section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 for having unprotected sex while HIV-positive, despite HIV not even being transmitted to the “victim” in question.

65. Women often learn they are HIV-positive before their male partners because they are more likely to seek access to health services and are consequently blamed for introducing the infection into communities. For many women, it is also difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences. Women may therefore face prosecution as a result of their failure to disclose, despite having valid reasons for non-disclosure. These laws do not provide women with any additional protection against violence or assurance of their rights to sexual decision-making and safety, and do not address the underlying socioeconomic factors that increase women’s vulnerability.

Criminalization of mother-to-child transmission

66. Some countries have enacted laws that criminalize mother-to-child transmission explicitly (see paragraph 54 above) or implicitly due to overly broad drafting of the law. Where the right to access to appropriate health services (such as comprehensive prevention of mother-to-child transmission services and safe breastfeeding alternatives) is not ensured, women are simply unable to take necessary precautions to prevent transmission, which could place them at risk of criminal liability. […]

Stigma, discrimination and violence

68. Stigma represents a major impediment to the implementation of successful interventions in respect of HIV/AIDS. Applying criminal law to HIV exposure or transmission can reinforce the stereotype that people living with HIV are immoral and irresponsible, further entrenching HIV-related stigma. People living with HIV/AIDS may, in turn, internalize the negative responses of others. This self-stigmatization affects the sense of pride and worth of individuals, which can lead to depression and self-imposed withdrawal, hampering access to HIV/AIDS treatment and interventions. In this way, criminalization impedes the right to health by constructing barriers to access by creating an environment in which individuals feel as if they are not deserving of treatment.

69. Discrimination against those affected by HIV/AIDS is one of the manifestations of stigma. For those living with HIV, actual and feared discrimination acts as a barrier to HIV-specific health services, including testing, anti-retroviral therapy and services in the prevention of mother-to-child transmission, in addition to broader health services.

70. The Special Rapporteur notes that individuals living with HIV have been convicted of crimes that did not actually inflict physical harm, damage any property or otherwise cause injury. Disproportionate severity in sentencing of those convicted of “HIV crimes” has become evident in a number of cases, the inference being that the defendants’ HIV status played a significant role in conviction and imprisonment. Criminal prosecutions, and the publicity stemming from them, have been found to increase stigmatization and have been perceived by people living with HIV as undermining public health efforts encouraging safer sex.

71. The criminalization of HIV transmission also increases the risk of violence directed towards affected individuals, particularly women. HIV-positive women are 10 times more likely to experience violence and abuse than women who are HIV-negative.

Right-to-health approach

72. The Special Rapporteur emphasizes that any domestic legislation concerning HIV transmission should be based on a right-to-health approach; that is, States must comply with their obligations to respect, protect and fulfil the right to health through the enactment of such legislation. Most relevantly, the obligation to protect requires States to take measures to protect all vulnerable or marginalized groups of society, and the obligation to fulfil similarly requires steps to assist individuals and communities to enjoy the right to health – particularly those who are unable to realize the right themselves.

73. Any law concerning HIV transmission should therefore be directed at issues around public infrastructure, access to medicines, information campaigns concerning HIV/AIDS and so forth. The criminalization of HIV transmission should not form the mainstay of a national HIV/AIDS response, and its necessity is questionable in any event. Informed individuals take steps to prevent HIV transmission irrespective of criminal laws around transmission, and there is little evidence that specific laws criminalizing HIV transmission deter or modify the behaviour of individuals. With little benefit demonstrated in terms of achieving the aims of the criminal law or public health, and a corresponding risk of alienation, stigmatization and fear, it is difficult to see why the criminalization of HIV transmission is justified at all. Laws that are unnecessarily punitive will undermine any public health response to HIV, rather than assist it.

74. As such, criminalization should be considered permissible only in cases involving intentional, malicious transmission. The criminalization of any lesser mens rea is not only inappropriate, but also it is counterproductive in the struggle against the spread of HIV. In the view of UNAIDS:

Criminal law should not be applied where there is no significant risk of transmission or where the person:

• Did not know that he/she was HIV-positive

• Did not understand how HIV is transmitted

• Disclosed his/her HIV-positive status to the person at risk (or honestly believed the other person was aware of his/her status through some other means)

• Did not disclose his/her HIV-positive status because of fear of violence or other serious negative consequences

• Took reasonable measures to reduce risk of transmission, such as practising safer sex through using a condom or other precautions to avoid higher risk acts

• Previously agreed on a level of mutually acceptable risk with the other person

75. Finally, domestic laws prohibiting the deliberate spread of any disease or assault, or laws concerning the age of consent, adequately cover intentional transmission of HIV should the need arise to prosecute cases where this has occurred. The use of these preexisting laws provides a legal safeguard to potential victims, without unnecessarily stigmatizing and further marginalizing those affected by HIV within the jurisdiction. States should, in addition to using pre-existing laws, issue guidelines to ensure that these laws are only utilized in cases of intentional transmission and that the relevant mens rea is to be established beyond a reasonable doubt.

Recommendations

76. The Special Rapporteur calls upon States:

[..]

(c) To immediately repeal laws criminalizing the unintentional transmission of or exposure to HIV, and to reconsider the use of specific laws criminalizing intentional transmission of HIV, as domestic laws of the majority of States already contain provisions which allow for prosecution of these exceptional cases.

Global: Ten reasons why criminalisation of HIV exposure or transmission harms women

A new pamphlet released to coincide with World AIDS Day highlights why criminalisation is bad for women and girls, despite policymakers believing they are enacting new HIV-specific laws in order to protect them.

In addition to criminalizing the transmission of HIV, these laws sometimes call for mandatory HIV testing of pregnant women, as well as for non-consensual partner disclosure by healthcare providers; further exacerbating the impact of such legislation on women. The call to apply criminal law to HIV exposure and transmission is often driven by a well-intentioned wish to protect women, and to respond to serious concerns about the ongoing rapid spread of HIV in many countries, coupled with the perceived failure of existing HIV prevention efforts. While these concerns are legitimate and must be urgently addressed, closer analysis reveals that criminalization does not prevent new HIV transmissions or reduce women’s vulnerabilities to HIV. In fact, criminalization harms women, rather than assists them, while negatively impacting on both public health needs and human rights protections. Applying criminal law to HIV exposure is likely to heighten the risk of or transmission does nothing to violence and abuse women face; address the epidemic of gender-strengthen prevailing gendered based violence or the deep economic, inequalities in healthcare and family social, and political inequalities that settings; further promote fear and are at the root of women’s and girls’ stigma; increase women’s risks and disproportionate vulnerability to HIV.

It then details the ten reasons:

  1. Women will be deterred from accessing HIV prevention, treatment, and care services, including HIV testing
  2. Women are more likely to be blamed for HIV transmission
  3. Women will be at greater risk of HIV-related violence and abuse
  4. Criminalisation of HIV exposure or transmission does not protect women from coercion or violence
  5. Women’s rights to make informed sexual and reproductive choices will be further compromised
  6. Women are more likely to be prosecuted
  7. Some women might be prosecuted for mother-to-child transmission
  8. Women will be more vulnerable to HIV transmission
  9. The most ‘vulnerable and marginalized’ women will be most affected
  10. Human rights responses to HIV are most effective.

10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women was drafted by Dr. Johanna Kehler of the AIDS Legal Network, Michaela Clayton of the AIDS & Rights Alliance for Southern Africa, and Tyler Crone of the ATHENA Network.

You can download the pdf of the pamphlet here.

To endorse the document or for more information, please contact:

ATHENA Network: www.athenanetwork.org

AIDS Legal Network: www.aln.org.za

ARASA: www.arasa.info

Australia: New publication examines criminalisation; works as advocacy tool

NAPWA monograph:
click on image to download
There have been some very important policy developments in Australia recently that I’ve been waiting to post about until I’d finished reading the entire (Australian) National Association of People Living With HIV/AIDS (NAPWA) monograph, The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality, to which I contributed a chapter (as a co-author).

I’ve now read all eleven chapters and I have to say that the monograph is essential reading for anyone interested in the issue of criminalisation. It has provided me with a great deal of insight and food-for-thought as I write my book (an international overview of the issues) for NAM.

As the Honourable Michael Kirby writes in the preface

“NAPWA has collected knowledgeable and informed commentators who have a great awareness of the epidemic in Australia. Without exception, the chapters are thoughtful, balanced and informative. I hope that they will be read in Australia. Indeed, I hope that they will be available overseas to bring enlightenment that is the first step in an effective response to the epidemic.”

You can see video of MP Kay Hull speaking at the launch, held last month in Canberra, here.

The monograph is already working its magic as an advocacy tool. Last week, the Sydney Star Observer reports that HIV organisations in Victoria – where more than half of all Australian prosecutions have taken place – are leading the call to clarify exactly when the public health department will involve the police to deal with people who are not disclosing their HIV status and having unprotected sex.

Contents: click on image to enlarge

One of the chapters in the monograph examines such discrepancies in new state and national guidance on the management of people living with HIV who engage in risky sexual behaviour. The National Guidelines for the Management of People with HIV Who Place Others at Risk were produced in 2008 following the fallout from the Michael Neal and Stuart
McDonald cases. The guidelines recommend that public health authorities refer people who persistently ignore warnings to disclose and/or practise safer sex to the police as a last resort, but aren’t very clear on how this happens in practice.

Victorian AIDS Council executive director Mike Kennedy said although there were guidelines, a recent meeting of AIDS Council heads showed other states were similarly unclear about exactly what circumstances trigger a referral to police. “I’m not aware of any Australian state that has any clear guideline to say how this will happen, so that’s the missing bit from the reviews that were done around the country,” Kennedy said. “Our view is that [protocols] ought to be governed by a set of agreed procedures, not just rely on goodwill and a set of relationships between people in the Health Department and people in the police service because those people change.”

The NAPWA monograph also includes an enlightening chapter on the impact of prosecutions on people living with HIV, concern echoed in this comment in the SSO article from People Living With HIV/AIDS Victoria president Paul Kidd.

[Kidd] said the uncertainty of where criminal charges would be pursued was creating concern among some HIV positive people. “They’re fearful that in the normal course of their sexual lives they could put themselves in a situation where they inadvertently attract the attention of the police,” Kidd said. “We’re not talking about people who are deliberately spreading HIV or behaving in a negligent fashion. We’re talking about ordinary gay men and other people who are HIV positive who live in an environment where unprotected sex is a part of [their] lives.

I’m also reproducing an editorial by Robert Mitchell, NAPWA’s president, below, to give you an idea how NAPWA hopes this monograph will lead to a change in the way Australia deals with criminal prosecutions.

HIV affects us all and, positive or negative, gay or straight, we all have a responsibility to do what we can do prevent HIV transmission. People living with HIV have long accepted the critical role they play in preventing HIV infections, as part of a model of shared responsibility. But the recent increases in criminal prosecutions of HIV exposure and transmission in Australia have caused considerable concern and led some to ask: is that model of shared responsibility breaking down?

In response, last year NAPWA commissioned a collection of papers to examine these issues. We wanted to show how these cases have been prosecuted quite inconsistently across the country, and how they have been represented in the public domain by media coverage. We are launching the resulting monograph, The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality, this week.

A number of authors with different viewpoints have contributed to the monograph, including academics, legal experts and voices from within the HIV-positive and HIV-affected communities. The end result is a collection of papers that provide rigorous analysis of the current environment in Australia, and other parts of the world, with regards to prosecution of HIV transmission.

This set of materials and commentaries will be the basis for further work on these issues by NAPWA and its member organisations. Our intention is to start a dialogue across the HIV sector and with the broader public health and legal sectors, to examine the issues raised and the impact of criminal prosecutions on the HIV-positive community in Australia today.

While few would argue that an HIV-positive person who deliberately and maliciously sets out to infect another person with HIV has committed an act of violence that should be subject to criminal sanction, very few of the prosecutions in Australia have been in this category. Almost all have been for the ‘knowing and reckless’ category of HIV transmission, where the accused had no intention of transmitting HIV.

The use of criminal law against a person on the basis of HIV status in these circumstances is considered by many to be discriminatory, as it treats the HIV-positive partner as perpetrator and the HIV-negative partner as victim. This shifts the burden of prevention onto people with HIV, and undermines established principles of shared responsibility and safe, consenting, sexual practice.

The blame and persecution directed towards HIV positive people is unacceptable and NAPWA is calling for a review of criminal laws to redress this imbalance. Laws requiring mandatory disclosure by positive people, and laws that treat HIV as inherently more serious than other infections with similar medical impacts, are areas we think need fixing. We need a nationally consistent legal framework that supports public health policy and population health outcomes, and protects the human rights of people with HIV.

NAPWA hopes this work will spark interest and support from across the community to work towards resolving these differences and contradictions. We are working towards a nationally consistent, fair and just legal framework that reinforces rather than degrades the model of shared responsibility and treats HIV as a health issue first and a legal issue only as a last resort.

Canada: Video project highlights anger, frustration with criminalisation

A new video project by Canada-based filmmaker Orazio Caltagirone, AIDSphobia, is now available to watch on YouTube.

Mixing speeches by Edwin Cameron with TV footage and other existing media, the video explores various issues surrounding the criminalisation of people living with HIV. Although it can be confusing and difficult to watch at times, it is obvious that the filmmaker is passionate about the subject, and angry. “One of the main reasons why I decided to make this video is because this situation is getting out of control in my country,” Orazio tells me in an email.

The video totals 60 minutes, but is split into ten parts.

1 3:57 AIDSphobia INTRO

2 4:59 IN THE BEGINNING…

3 5:21 SPITTING

4 4:15 THE STIGMA

5 4:25 AIDS IS A MASS MURDERER

6 8:50 JOHNSON AZIGA

7 8:59 RELIGION

8 7:51 GTD: STATS

9 7:28 10 REASONS

10 4:41 CLOSING CREDITS

US: Media, police, judge conspire in ‘hate crime’ against gay HIV-positive man in biting case

I am so mad I could spit and bite! I’ve seen a lot of bad reporting and bad legal decisions during my time blogging, but never before have I seen the media conspire with the criminal justice system in such a calculated, prejudiced, stigmatising, and ultimately harmful way.

A gay man from a small city in Michigan who has been harrassed and beaten up by neighbours for years, has been charged with “assault with intent to maim, assault with intent to commit great bodily harm and possession or use of a harmful device” after the latest assault resulted in biting his neighbour the lip whilst he was defending himself.

The story first appeared on October 30th in the Detroit News.

Although police allege [the accused] was the lone attacker — biting neighbor Winfred Fernandis Jr., 28, on the lip following the Oct. 18 confrontation — [the acccused] says he’s long been the target of bigotry on his street, and Fernandis, along with several of Fernandis’ family members, took turns beating him.

“I have no memory of biting him,” said [the accused], who is due in 41-B District Court for a preliminary hearing Monday. He divulged his HIV status after questioning from the media. “This person has been threatening me for years. The hatred needs to stop.”

“He divulged his HIV status after questioning from the media.”

How did that happen? Well, Fox News did some ‘investigating’ and discovered he was HIV-positive. They asked him to confirm it on camera – he did. They then told the bitten neighbour on camera. That’s when it got ugly.

Here’s the Fox News report.


Since HIV is involved, Clinton Township District Court Judge Linda Davis said during a preliminary hearing on November 2nd that just knowing he was HIV-positive and biting the neighbour is enough to sustain these very serious charges, reports a second story in the Detroit News.

“He knew he was HIV-positive, and he bit the guy,” Davis said. “That on its own shows intent.”

No it doesn’t, Judge Davis, because saliva from a bite does not expose someone to HIV. Now she is implicated, along with the police and the complainant (and his wife), in a hate crime.

“I am still maintaining my client is the victim of a hate crime,” [the man’s attorney, James L. Galen Jr.] said. “He will be exonerated. This is the very first battle in what I think is going to be a long war.”

A pretrial and arraignment will take place on November 16th.

US: Arkansas man accused of HIV exposure not HIV-positive despite confession

A 41 year-old man in El Dorado, Arkansas, appears to have admitted under police questioning that he was HIV-positive after being arrrested in September for allegedly having unprotected without disclosing his HIV status.

However, a brief report from the police log of the El Dorado News-Times notes that the man was, in fact, HIV-negative, something he’d maintained during his arrest.

One can only wonder what went on during his time being questioned by police that could have made this man confess to something that wasn’t true, and why he was arrested in the first place.

Charges will not be filed against an El Dorado man who was arrested on Sept. 17 for knowingly/willfully exposing another person to HIV. Police said an investigation determined that [name of accused] 41, does not have HIV. According to an affidavit for warrant of arrest, [he] initially told officers he was not HIV-infected, but upon further questioning, he said he had the virus. Police said testing and a review of [his] medical records led to the charge being dropped.

Germany: Man accused of intentional sexual transmission; complainant gives interview

An HIV-positive man has been arrested in the northern German city of Kiel accused of grievous bodily harm following a complaint from a 39 year-old woman who recently tested HIV-positive and who claims the man lied about his HIV status before they had unprotected sex. She also claims that he admitted to her that he plans to infect more women.

The story appeared today as an interview with the female complainant in the Hamburger Morgenpost (not-quite perfect English translation from Google translate here).

The woman, known as Beate K. is also photographed, but appears to be heavily disguised in a wig and sunglasses. She names her accused as Volker W. whom she met on an online dating site following the end of her 20 year marriage.

According to Beate, who lives in a small village in Schleswig-Holstein (of which Kiel is the capital), Volker persuaded her to have sex after two months and told her that he was “clean” and was tested for STIs “regularly”. She claims he refused to wear a condom.

It’s not clear from the interview whether they had sex more than once or how long the relationship lasted. But “in the summer” she became ill, and was eventually diagnosed with HIV disease. She says that since Volker was the only man she had been intimate with since her divorce, she called him to let him know. It was at this point that Beate claims he infected her deliberately

“He admitted he had infected me, and boasted that he would infect other women, since he was already in a new relationship.”

The police became involved, arrested Volker W., and are keeping him in custody because there is a risk he will reoffend. According to spokesperson Uwe Wick, they know of three women “affected”. He asks that any other women “overcome their shame and report it to the police.”

Whilst I have no reason to doubt the veracity of Beate’s statements, I am concerned that this testimony will possibly prejudice any judge or jury that may come across this case in the future.

There are certainly good ethical and legal grounds for prosecution, but one of the things that stands out about cases where female complainants go public to talk about their experiences, is the missed opportunity to highlight that even divorced women in small villages in northern Germany are at risk of HIV, and that they shouldn’t rely on their male partner’s (lack of) disclosure to protect them.

The point of the criminal law is to punish actions that we consider to be morally harmful. In this case, it appears to be warranted (although I would like to hear both sides of the testimony in a trial before my mind is made up). Proponents of crimalisation point to cases like these and say: well, of course, there should be prosecutions. He’s bad, he must be punished.

But how has the criminal law (and the media reporting on it) impacted on HIV prevention, on public health? Has it stopped future infections? Possibly, if the man’s intention was to infect more women. But the implicit message here is that women need only worry about these rare “monsters” who deliberately set out to infect them.

In order to avoid even more infections, women need to be aware that it is not just “monsters” that can transmit HIV, and that unless they insist on condoms (where that is possible, as it was in this case) rather than rely on disclosure and reassurance, they will be protecting themselves from all partners who may have HIV and may not tell them, either because they don’t know they are infected or because they don’t disclose.

[Thanks to my German partner, Nick, for helping me understand the report.]

Canada: Newspaper editors charged over photo of Aziga complainant

The publisher and two editors of The Hamilton Spectator were charged yesterday with breaching a publication ban by publishing the photo of one of the complainants in their coverage of the murder trial of Johnson Aziga.

According to a report in today’s National Post, publisher, Dana Robbins, editor-in-chief, David Estok, and managing editor, Jim Poling, along with The Hamilton Spectator “as a corporate entity” have been charged on two counts of breaching a publication ban for publishing, at some point during coverage of the trial

a picture taken by a long-time staff photographer with a caption that included the words: “A woman, on right, who was infected by Aziga.”

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.