US: HIV Criminalisation Webinar on Dec 7 for criminal defense attorneys about the current state of medicine

2017 FREE Webinar: HIV Criminalization Webinar

On December 7, 2017, the National Association of Criminal Defense Lawyers (NACDL) and The Center for HIV Law & Policy (CHLP), will co-host a webinar on HIV Criminalization that will provide participants with a medical primer about the current state of medicine with regard to HIV research and treatment. This primer, geared toward criminal defense attorneys, but open to all, will be coupled with a discussion on how to use medical research to develop defenses, present the court with mitigation, negotiate favorable pleas for clients, and litigate constitutional, evidentiary, and discovery issues. There will also be a section exploring the ethical issues that attorneys must grapple with when handling these cases. See attached event flyer.

Date: Thursday, December 7, 2017

When: 1:30 p.m. – 3:00 p.m. ET

Cost: FREE

CLE credit: Available for up to *1.5 hours of CLE (general) where self-study credit authorized and approved.

* Registrants will be sent a link to the written CLE materials in advance of the webinar.

US: Exploring the link between HIV criminalisation, the threat of long prison sentences, racial inequalities and plea bargains

Michael Johnson, HIV Disclosure, and the Coercive Nature of Plea Bargains

On Sept. 21, 2017, Michael Johnson, a former college wrestler, entered a no-contest plea in the St. Charles Circuit Court in Missouri. He was sentenced to 10 years in prison, which includes time served for the four years he has already spent behind bars.

As readers might remember, Johnson was arrested in 2013 and charged with non-disclosure of his HIV status to six sexual partners. Johnson said that he had disclosed; the prosecution argued that he hadn’t and that one of Johnson’s partners later tested positive for HIV.

In a trial rife with racism and homophobia, the young black gay college student was convicted and sentenced to 30 years in prison. He appealed and, in April 2017, the state supreme court upheld his right to a new trial.

However, Missouri’s laws around HIV non-disclosure are among the harsher in the country. Under the state’s statute, originally passed in 1988 and made harsher in 1997 and 2002, HIV non-disclosure before sex is a felony. So is HIV transmission. It doesn’t matter whether a condom was used; what matters is whether defendants can prove that they told their partner before having sex.

If he had taken his chances at a new trial, Johnson risked a 100-year prison sentence if another jury of twelve found him guilty.

Johnson’s experience, complete with the threat of a century in prison, might seem shocking, but the reality is that plea bargains are extremely common.

Plea Bargains: An Everyday Occurrence

Nearly all felony convictions — 94% at the state level and 97% at the federal level — are the result of plea bargains.

This has even been acknowledged by the U.S. Supreme Court, coincidentally in a case that originated in Missouri. In August 2007, college student Galin Frye was arrested and charged with driving with a revoked license. Because he had been convicted of the same offense three times before, the state of Missouri charged him with a class D felony, which carried a maximum sentence of four years. Three months later, the prosecutor sent Frye’s attorney a letter offering two plea bargains. If Frye pled guilty to the felony charge, the prosecutor would recommend that Frye serve only 10 days of a three-year sentence. This still meant that Frye would be saddled with a felony record (and have to spend 10 days in jail). The second offer reduced the charge to a misdemeanor, which carried a maximum sentence of one year behind bars; the prosecutor would recommend that Frye serve only 90 days. These offers, the letter continued, would expire on Dec. 28, one week before Frye’s Jan. 4 court hearing.

But Frye’s attorney didn’t bother to tell his client about the letter or the plea offers. Two days after the offer had expired, on Dec. 30, 2007, Frye was again arrested for driving with a revoked license. Frye pled guilty and, though the prosecutor requested 10 days in jail, the judge sentenced Frye to three years in prison. It was only after he had been sentenced that Frye learned about these plea offers. He filed for post-conviction relief, arguing that, had his attorney told him about the letter, he would have accepted the misdemeanor plea bargain.

His case made it to the Supreme Court, which, in 2012, sided with him. Writing for the majority, Justice Anthony Kennedy acknowledged the overwhelming significance of the plea bargain: “‘[H]orse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.'” But, by the time the decision was issued, Frye had already served his sentence.

When he was arrested in 2013, a year after the Missouri v. Frye decision, Michael Johnson had no prior criminal record. However, he was a black gay man being tried in St. Charles, a county that is 90% white and among the country’s top 100 conservative counties. During his summation, the prosecutor freely admitted to intentionally including prospective jurors who considered gay sex a sin. The jury deliberated for just over two hours before convicting Johnson of five of the six counts and recommended 30 years in prison.

“Pleas Are the Norm and Trials Are Not”

Even those facing charges for the first time have a high incentive to accept a plea rather than wait (and wait and wait) for their constitutional day in court.

Mariame Kaba is the director and founder of Project NIA, a nonprofit organization based in Chicago that works toward ending youth criminalization and incarceration. She told TheBody.com that in her years working with criminalized youth, less than a quarter of those facing criminal charges have ever taken their case to trial. “Pleas are the norm,” she said, “Trials are not.” The threat hanging over each defendant’s head is that, if he or she exercises the constitutional right to a trial and loses, the prosecutor will demand the highest possible penalty. If people plea bargain, they can receive a more lenient sentence.

In 2009, Robert Suttle pled guilty to HIV non-disclosure. In Louisiana, where Suttle had been arrested and was facing trial, intentional exposure to HIV carries a possible ten-year prison sentence. When his attorney told him that he could plead guilty and instead serve two years of probation, he decided to do just that. “They already have evidence that you are HIV positive,” he explained to TheBody.com. “You know your status, which shouldn’t be a crime, but the burden is on you to prove that you did disclose.” Facing the chance that a guilty verdict would mean a decade in prison, Suttle opted for what he felt was the lesser punishment.

Like many defendants, Suttle was never in the room when his attorney and the prosecutor hashed out a possible plea bargain. In fact, he told The Body, he had already started working in another state by the time his attorney and the prosecutor began negotiations.. It was only after pleading guilty that he learned that he would not only spend two years on probation, but also six months behind bars and 15 years on the sex offender registry. “I pled to something not fully understanding the implications,” he reflected.

But it’s not simply the threatened sentence that pushes many towards plea bargains. Kaba noted that many youth, particularly those who are low-income youth of color, are assigned bail amounts that their families cannot afford, which results in them spending lengthy amounts of time in jail as they await their day in court. “And,” Kaba added, “Jail is hellish.” In addition, more often than not, they’re assigned public defenders who are overloaded with other cases and unable to provide any shadow of time-intensive, let alone zealous, representation.

At the same time, the hammer of the criminal justice system doesn’t fall equally on everyone. “Race is involved in the criminal punishment system at every level,” Kaba reminded TheBody.com. Black people are up to ten times more likely to be arrested than people of other ethnicities. Black people are also 10% more likely than whites to be either remanded to jail before trial or unable to afford bail; they are also more likely to be offered pleas involving incarceration rather than probation.

HIV criminalization follows that same pattern. The Williams Institute found that, in California, white men were significantly more likely to be released without charge (61% of HIV-specific criminalization cases). But black men, while making up 14% of people living with HIV in California, made up nearly one-fifth (19%) of those criminalized because of their HIV status. The disproportion for black women was even higher: Though they are only 4% of the state’s population living with HIV, they make up 21% of those who have had contact with the criminal justice system because of their status.

As reported previously, HIV criminalization has long been used as a prosecutorial threat, even if HIV-specific charges are never filed in court. In New Orleans, Women With a Vision organizes with low-income African-American women, many of whom are living with HIV. Policy director Nia Weeks, who previously worked as a public defender, noted that the city’s district attorney often threatens to upcharge (or increase criminal charges) or to use the state’s habitual offender laws to coerce people to plead guilty.

Race and Place Matter

When considering whether to take a chance at trial or to accept a plea bargain, race and place matter.

Kaba of Project NIA has co-founded campaigns to support abuse survivors criminalized for self-defense. She points to the case of Ky Peterson, a black trans man incarcerated in Georgia for shooting the man who raped him. When he was taken to a clinic for a rape exam, the woman conducting the exam told him that he didn’t look like a rape victim. The police and prosecutors didn’t believe him either, instead accusing Peterson, whom they assumed to be a woman, of luring the man into a trailer with promises of sex and setting him up to be robbed by his brothers.

After a year in jail, Peterson signed a plea agreement for what he thought was involuntary manslaughter and a ten-year sentence. (According to the court transcripts, however, Peterson actually pled guilty to voluntary manslaughter and was sentenced to 20 years.) “He knew that people were not going to believe him, that as a black trans man he was raped,” Kaba stated.

But it’s not just race and place. There’s also understanding — or a lack of understanding — about HIV. Suttle, a black man living in Shreveport, Louisiana, recalled that the prosecutor in his case was a black woman; the judge was a black man. “We have people in places of power prosecuting people based on their limited knowledge of HIV: that it is a death sentence,” he explained. At the same time, he recalled, he didn’t know anything about HIV criminalization — or resources to help him fight the charges. “People now have resources — the Sero Project, the Center for HIV Law and Policy, advocates to consult with, opportunities to reach out and get more information rather than relying on courts to be fair,” he reflected. At the same time, he realizes that many people remain unaware that such resources exist and, like him, sit in court feeling alone and desperate. “That means there’s a lot more work for us to do,” he said.

In Missouri, with the threat of a 100-year sentence hanging over his head, Michael Johnson, a black gay man living with HIV, might also have feared that a jury would not believe him.

“It takes a lot here for people to be open about their HIV status,” said Devin Hursey, a member of the steering committee for the U.S. People Living With HIV caucus and a member of the Missouri HIV Justice Coalition. Hursey lives in Kansas City, a three-hour drive across the state from St. Charles, where Johnson was tried and convicted. “Prevention workers are very progressive, but the average Missourian, unless they know about public health and the way that HIV is transmitted, is not.”

Hursey, now age 27, still remembers learning about HIV in 7th grade when the Dramatic Health Education Project through the Coterie Theater performed at his junior high. “They did two monologues,” he recounted. “The actors told stories of people living with HIV.” But, he acknowledges, that particular learning experience doesn’t happen in every school.

Symptoms of the System

The white, conservative suburb of St. Charles is approximately 15 miles from the suburb of Ferguson, where the police killing of 18-year-old Michael Brown sparked protests both locally and nationwide. St. Charles is also less than 25 miles from St. Louis, where police officer Jason Stockley was recently acquitted in the 2011 fatal shooting of Anthony Lamar Smith. His acquittal triggered weeks of protest, which were often met by police violence.

Not that Missouri’s racial tensions are restricted to St. Louis and its suburbs, Hursey reminded TheBody.com. Last year, the state passed a law allowing prosecutors to charge schoolchildren, regardless of age, with a class E felony for a school fight in which someone is injured. Class E felonies carry a penalty of up to four years in prison. Missouri already has a high suspension rate — and the highest racial disparity among suspensions in the nation. During the 2011 to 2012 school year, the state suspended 14.3% of its black elementary schoolchildren at least once; in contrast, only 1.8% of white schoolchildren were suspended. Missouri elementary schools go from kindergarten to fifth grade, meaning that their students range from ages five to ten.

For Michael Johnson, pleading guilty means that parole is his next hope of an earlier release. But parole practices in Missouri have long been fraught with opportunities for parole board members to humiliate prisoners seeking early release. One parole commissioner, who was particularly known for humiliating and intimidating parole applicants, has since resigned, but Johnson will still face an uphill battle not only to obtain parole but also not to be returned to prison for a petty parole violation.

As they regroup and plan to continue supporting Johnson, HIV activists recognize that the struggle doesn’t end with Johnson or even the repeal or modernization of HIV criminalization statutes. Charles Stephens, executive director of the The Counter Narrative Project, which advocates around issues that impact black gay men, told TheBody.com: “Racist sentencing practices in the criminal justice system have been a key tactic in the practice of white supremacy throughout history. Michael Johnson is very much a victim of this system. We must continue to recognize that the struggle against HIV criminalization is also connected to the struggle against mass incarceration and racism.

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women. You can find more of her work at Victorialaw.net.

UK: Police accused of fear mongering by playing up the risks of HIV and hepatitis C transmission through spitting

Police accused of exaggerating risks of HIV to introduce spit guards

Force plans to issue guards to officers from January, saying people infected with blood-borne viruses use spitting as a weapon

A police force has been accused of fear mongering and stigmatising sufferers of hepatitis C and HIV by playing up the risks of transmission of blood-borne viruses as a reason to introduce spit guards.

Avon and Somerset police announced their plan to issue spit guards to all operational officers from January next year. “Each day we face being spat at, putting us at risk of HIV, hepatitis and tuberculosis and the degrading assault can have a lasting psychological impact,” said Assistant Chief Constable Stephen Cullen.

Spit guards are tight mesh hoods that officers can pull over the heads of suspects resisting detention to stop them from spitting or biting. They are used by 25 forces but have been criticised by human rights groups.

Avon and Somerset’s announcement came with an account by an officer, named John, who said people infected with blood-borne viruses use spitting as a “weapon”. He described an incident in which he arrested a drunk woman who had hepatitis C after she attacked a paramedic.

“She was continually spitting, spit that was bloody. It was disgusting; she was trying to infect us,” he said, recounting how officers donned riot gear to protect themselves as they stripped the detainee for her safety. “After the shift we all went home to our kids wondering what we were taking home.”

Rachel Halford, the deputy chief executive of the Hepatitis C Trust, said she agreed that police should be protected from health risks, but rejected the force’s implication that the virus could be transmitted through spitting.

“Hepatitis C is a blood-borne virus and is therefore only transmitted through blood-to-blood contact. The virus cannot be transmitted via spit,” she said.

“Stigma and misinformation about hepatitis C and other blood-borne viruses is a key challenge faced by patients, who are already disproportionately from the most marginalised and disadvantaged groups in society. Many patients report feeling ‘dirty’ and experiencing social exclusion due to misinformation about transmission risks.”

Kat Smithson, the director of policy and campaigns at NAT (National Aids Trust), said Avon and Somerset’s claims about HIV and hepatitis C were wrong and stigmatised people with the conditions.

“HIV is irrelevant to the debate about spit hoods because spitting simply is not an HIV transmission route,” she said. “In the history of the epidemic, there has never been a case of HIV being passed on through spitting, even when the spit contains blood.”

According to Avon and Somerset police, the restraints will be used only when a person threatens to spit, has attempted to spit or has already spat, and only when officers’ body-worn cameras are switched on.

Despite those safeguards, Deborah Coles, the director of Inquest, raised concerns over their introduction to another police force. “There should be no doubt spit hoods are a use of force and have the potential to cause acute trauma and injury,” she said.

“We know from our work that mental health concerns or other difficulties often sit behind agitated behaviour. Our fear is spit hoods will become the default response and used against vulnerable detainees.

“We had hoped that after the restraint death of James Herbert, Avon and Somerset police would have prioritised safer, more humane policing methods with a focus on de-escalation and detainee welfare.”

Avon and Somerset’s police federation backed the decision, which the force said was in support of the national federation’s proposed assault on emergency workers (offences) bill.

Vince Howard, the chairman of Avon and Somerset police federation, said: “This option affords those officers, who are increasingly subject to this abhorrent act, the opportunity to protect themselves from the risks of serious communicable diseases.”

Data for spitting incidents reported on the Welfare Information Form shows there have been 79 spitting incidents out of 487 recorded assaults since April, which a force spokesman said was a sharp increase on previous reports.

US: Webinar on HIV criminalisation primarily aimed at defense lawyers organised by NACDL and CHLP on Dec 15

Date: Thursday, December 7, 2017

When: 1:30 p.m. – 3:00 p.m. ET

Cost: FREE

CLE credit: Available for up to *1.5 hours of CLE (general) where self-study credit authorized and approved.

Note: Confirmed registrants will receive a web link via email the morning of the event.

Registrants will be sent a link to the written CLE materials in advance of the webinar.

Presenters

Dr. David Wohl (Chapel Hill, NC)

David Alain Wohl, MD is a Professor of Medicine in the Division of Infectious Diseases at the University of North Carolina (UNC). He is Site Leader of the UNC AIDS Clinical Trials Unit at Chapel Hill, Director of the North Carolina AIDS Education and Training Center (AETC) and Co-Directs HIV Services for the North Carolina state prison system. In 2014, he became Co-Director of the UNC-Duke-Clinical RM Ebola Response Consortium. Dr. Wohl’s research aims to optimize the treatment of HIV including the identification of the most effective therapeutic approaches, and minimizing adverse effects of therapy. He also is active in investigations focused on HIV vulnerable populations, such as the incarcerated. He is active within the US AIDS Clinical Trials Group and HIV Prevention Trials Network and served two terms as a member of the US Department of Health and Human Services Antiretroviral Guidelines Panel. As part of the response to the 2013-16 Ebola outbreak in West Africa, Dr. Wohl led UNC clinical research efforts to test interventions for Ebola Virus Disease in Liberia and now directs a clinical cohort of Ebola survivors. In addition to his research and administrative activities, Dr. Wohl maintains a large HIV continuity clinic at UNC.

Stephen Scarborough (Atlanta, GA)

Stephen R. (Steve) Scarborough is a criminal defense attorney in Atlanta whose practice focuses on appellate and post-conviction matters in state and federal courts. A graduate of Emory University and Yale Law School, he has been a longtime public defender, a staff attorney at the Southern Regional Office of Lambda Legal, and an attorney in private practice representing persons accused in serious felony cases. He is interested in the intersection of the criminal law and public health and has represented several persons who were accused of HIV-related offenses or were subject to enhanced sentences on account of their status. He is part of a community effort to replace Georgia’s outdated, HIV-specific reckless conduct statute, which imposes felony liability in a broad range of cases where transmission of HIV is nearly or totally impossible.

Jamaica: Office of the Director of Public Prosecutions recommends legislation making wilful transmission of STIs a crime

Prosecutors want Law making wilful transmission of sexual disease a crime

Jovan Johnson, Parliamentary Reporter

The Office of the Director of Public Prosecutions has recommended that the Parliament make it clear in law that knowingly transmitting a sexual disease is a crime.

Assistant DPP, Adley Duncan, said the offence exists at common law but there is no legislation explicitly stating that the act is illegal.

He made the recommendation this afternoon during a parliamentary committee reviewing Jamaica’s sex laws.

Duncan said the position of the Office of the DPP stemmed from last year’s case involving George Flowers, who was ordered extradited from Jamaica to Canada on allegations he knowingly transmitted HIV to four women in the North American country between 1996 and 2012.

Flowers reportedly fled to Jamaica in 2012, the same year Canadian police issued an arrest warrant and later an extradition request.

Jamaica and Canada have an extradition treaty, which has the DPP’s office as the central authority or the representative of the requesting foreign state.

Duncan said an issue developed following the request in 2013 as Flowers argued that the offence was in Canadian law but not in Jamaica’s and therefore by the rules, he could not be extradited.

The assistant DPP said prosecutors successfully argued that the offence is recognised at common law and the courts upheld the order.

He also noted that under Jamaica’s marital rape law, knowingly or recklessly transmitting a sexual offence is a crime.

But Duncan said, making it clear in law that such an action is a criminal offence would remove any doubt.

South Africa: Regional judges meet to discuss the use of law as a tool to respond to the HIV epidemic in Africa

Regional judges meet to promote law as a tool to strengthen the HIV response in Africa

High and Supreme Court judges from across Africa gathered in Johannesburg, South Africa this week for an annual forum to share experiences, compare cases across different jurisdictions, learn about the latest medical and science developments, and discuss ways to advance the use of law as a tool to respond to the HIV epidemic.

The three-day Africa Regional Judges Forum on HIV, Human Rights and the Law was attended by nearly 50 participants, including 30 judges from 16 countries, and was organized by the United Nations Development Programme (UNDP) through the Africa Regional Grant on HIV: Removing Legal Barriers.

The forum was established by a group of judges in 2014 following the release of the report of the Global Commission on HIV and the Law, an independent body convened by UNDP which examined links between legal environments and HIV responses. The annual meetings are owned and planned by the judges themselves.

“Through their interpretation of national Constitutions, legislation, international and regional human rights treaties, the judiciary play a crucial role in establishing and implementing laws, policies and practices that can aid the HIV response,” said Justice Key Dingake who opened the forum with a keynote speech. “This annual forum has proven to be a useful mechanism for facilitating experience and knowledge sharing amongst the legal community, and it is hoped that these efforts will translate into a positive impact on the lives of people affected by HIV, who are often among the most vulnerable in society.”

Discussions during this year’s meeting focused on transgender persons and their lived realities, HIV and tuberculosis in prisons, criminalization of HIV transmission, people who use drugs, and adolescent sexual and reproductive health and rights, including an in-depth discussion on child marriage in Sub-Saharan Africa.

Relevant cases were shared with participants. A landmark judgement in Malawi concerning overly broad criminalization of HIV non-disclosure, exposure and transmission was discussed in detail. The case concerns a woman living with HIV and on antiretroviral treatment who was convicted of a crime under section 192 of the Penal Code for breastfeeding another person’s child. The child did not contract HIV and the evidence indicated that the breastfeeding was accidental and unintended. With the support of the Southern Africa Litigation Centre, UNDP and a team of local lawyers and activists, the conviction was overturned in January 2017 as part of strategic litigation efforts. Key actors involved in the case, including the judge and defense lawyer, attended the session and shared insights of the case with participants.

“One of the key issues in the case was how HIV can be transmitted and the risk of HIV transmission when breastfeeding,” said Justice Zione Ntaba. “I was able to use the information from previous meetings of the Judges Forum as well as material on the database to assist me in determining whether breastfeeding a baby put the baby at significant risk of contracting HIV.”

Another session during the forum focused on tuberculosis in prisons. Katherine Brittin from TB/HIV Care Association discussed how tuberculosis is transmitted in prison and the risk factors for transmission, including overcrowding in prisons. She called on the judges to take these factors into account when sentencing individuals, especially given the overcrowding of prisons in many countries in Africa.

A key aim of the forum is to give opportunities for the judiciary to hear directly from representatives of civil society and affected population groups on the impact of laws, policies and practices. Real world lived experiences were presented by a transgender doctor, a transgender man from Asia-Pacific, a man who acquired TB while in prison, two women who were forced into marriage as children, and a person who uses drugs and is currently on methadone treatment.

In some parts of the region, cultural norms such as child marriage are having harmful effects on the HIV response. Participants from Zimbabwe shared the difficulties that they encountered in mounting a legal challenge for child marriage in the country. In 2016, civil society and the Southern African Development Community-Parliamentary Forum collaborated to develop a Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage which was intended to prompt policy reforms in Member States. While the initiative is still in its infancy, participants expressed hope that it will be a catalyst for change.

“Laws that are based on evidence and human rights have the power to make a positive impact on the HIV response,” said Amitrajit Saha, Senior Advisor HIV and Human Rights, UNDP. “UNDP works to empower and marginalized key populations, including women and girls, in national and local HIV responses can strengthen the response. This also contributes to fulfilling the Sustainable Development Goals pledge to ‘leave no one behind’.”

UNDP has developed an online searchable database of HIV and the law related judgements, which was shared with participants. The database is continually growing in size and has proven to be a useful tool for judges over the last two years that it has been in operation. The database can be accessed online here.

One highlight of this year’s gathering was the creation of a Steering Committee comprised of five judges from the forum. Justice Dingake will serve as the President of the Steering Committee; Judge Zukisa Tshiqi of the Supreme Court of Appeal of South Africa will serve as the Vice President. The other three members of the Steering Committee are Judge Mumcy Dlamini of the High Court of Swaziland, Judge Ndomba Kabeya Elie Leon from the Democratic Republic of the Congo and Judge Anthony Fernando of the Seychelles Court of Appeal. The Steering Committee will set the strategic direction of the forum, initially adopt a draft plan of action for the next six months and work with UNDP and other partners to implement the plan. Preliminary discussions were also held on expanding the forum to cover countries from the Middle East and Eastern Europe regions.

Additionally, the forum dedicated a session to planning for the upcoming Second Africa Regional Dialogue on HIV and the Law scheduled to take place 3-4 August in Johannesburg, and discussed the importance of including judges in this significant event.

UK: Inaccurate information around the risk of HIV or HCV transmission posed to police officers by spitting is stigmatising and hugely damaging

More than 30 years on from the start of the AIDS crisis, tabloids are still spreading a basic falsehood about HIV.

The claim has been repeatedly reported in newspapers amid a row over the use of police ‘spit hoods’ to prevent detainees from spitting at officers.

Amid a clash on the proposed use of spit hoods by the Metropolitan Police, outlets have repeated claims that their use will reduce the chances of officers being infected with HIV or hepatitis C – despite three decades of evidence that it is impossible to get HIV from saliva.

In a joint statement today, the Hepatitis C Trust and National AIDS Trust both expressed concern about the inaccurate reporting, pointing out that both HIV and hepatitis C “are blood borne viruses, and therefore cannot be transmitted via spitting.” HIV is transmitted from blood-to-blood contact.

Deborah Gold, Chief Executive of NAT said: “HIV is irrelevant to the debate about spit hoods because spitting simply is not an HIV transmission route.

“Using fear of HIV to justify spit hoods is extremely stigmatising and of great concern to NAT. This stigma and misinformation is especially damaging when a false implication of HIV risk from spitting comes from a source that people trust.”

Dr Stuart Flanagan, Clinical Research Fellow, Viral Hepatitis and HIV Medicine, Queen Mary University London, said: “Hepatitis C and HIV are not transmitted by spitting on someone else.

“Although these viruses may be theoretically present and detectable in saliva, the infection and transmission risk is negligible.

“In the UK the majority of cases of hepatitis C are transmitted by blood to blood contact, and the vast majority of HIV cases are sexually transmitted.”

The statement added that the inaccurate claims had been “hugely damaging as they reinforce existing stigma and misconceptions that surround both viruses.

“Such falsehoods also cause unnecessary alarm to police staff. Given the significant challenges faced by police officers in the line of duty, causing them to fear they have been put at risk when they have not places an undue burden upon them, and must not go unchallenged.

“While the debate around the use of spit hoods is an important one for the police, policy-makers and the public, hepatitis C and HIV are of no relevance to it and should not be used as justification for their use.”

Labour’s Shadow Home Secretary Diane Abbott, who had come under fire after saying there is “no evidence that spit hoods are necessary or useful”, told PinkNews in a statement: “This rational intervention made by the medical community is deeply appreciated. It is important that medical professionals have clarified this unfounded belief.

“The arguments for spit hoods should be evidence based. The public expect and deserve a national debate to be fact-based, not fear-based.

“Police staff, who are often under incredible stress in the line of duty, should not be led to believe that they are at high risk of HIV or HEP C from spitting.

“Disappointingly this association has been propagated widely across the media, particularly in the past few weeks. Amongst social media users and in major tabloid newspapers, including the Express, Mail, the Standard and the Sun.

“I hope they will widely report this important interjection by Hepatitis Trust and the NAT. “

Nigeria: On Zero Discrimination Day, Coalition of Lawyers for Human Rights strongly denounce judicial HIV stigma in ongoing child custody case (Press release)

Breach of HIV status confidentiality and discrimination by the Hon Justice Olagunju of the Oyo State Judiciary

Federal Capital Territory, Abuja. March 1, 2017.

Coalition of Lawyers for Human Rights, COLaHR, is a Coalition of Human Rights Lawyers working on issues of Persons Living With, Affected By or Most at Risk of HIV.

COLaHR has been following and monitoring a case involving a mother living with HIV, which is being adjudicated upon before the Hon Justice Olagunju of Court 7 of the Oyo State High Court of Justice.

Our interest in the matter is basically to monitor how courts, in the dispensation of justice involving persons living with HIV, respect their confidentiality and possible traces of stigma and discrimination, in accessing justice.

COLaHR is concerned with the attitude of the Honourable Justice on all fronts in this regard. On the 20^th of February 2017, while lawyers on both sides were delivering their final addresses, the presiding Judge, publicly made comments which publicly revealed the HIV status of the plaintiff. Not only was this wrong and a gross breach of confidentiality, the Judge also made comments obiter in the case of custody of the child, which exhibited gross stigmatisation and discrimination.

The Judge largely stated as follows:

“putting the interest of the child first, imagine the trauma that the little girl will pass through when the news of her mother being HIV-positive spreads across her school.”

The above quote, which was made in passing (obiter) and may not be included in the courts records, is patently discriminatory and coated with stigma. It betrays lack of appreciation of the prevailing HIV and AIDS laws at the federal and state levels. Several questions arise from Justice Olagunju’s statement:

What happens if both parents of the child are HIV-positive? Will such a child be handed over to foster parents?
Are we saying that persons with HIV in Nigeria are not fit for parenthood?
Should all HIV-positive adults therefore be sterilised?
Who will spread the news of Omolara being HIV-positive all over her daughter’s school?
Is the right to confidentiality of HIV status not guaranteed under Nigerian laws?

COLaHR makes the following findings from our monitoring of this case:

The disposition of Hon. Justice Olagunju clearly casts doubt on the ability of the court not to be swayed by the Plaintiff’s health status in coming to a decision on the matter.

The Plaintiff, in her statements to COLaHR has clearly shown the fear as in above, given her Husband’s request for custody of the child is hinged on HER HIV-POSITIVE STATUS.

It is in light of the above that COLaHR calls on Hon. Justice Olagunju to excuse himself from the case as justice must not only be done, but must be seen to have being done.

We call on the Chief Justice of the State, to direct Hon. Justice Olagunju to step down from the case.

We will in consonance with the law, share our findings with the Federal Attorney General and Minister of Justice and the State Attorney General respectively.

Signed

Roseline Oghenebrume,

National Coordinator, Coalition of Lawyers for Human Rights

Canada: Eye-opening document on how Crown attorneys approach prosecuting HIV non-disclosure cases disclosed

Document on HIV non-disclosure prosecutions disclosed

Written by Alex RobinsonFriday, 13 January 2017

A newly disclosed document sheds some light on how Crown attorneys may have approached prosecuting HIV non-disclosure cases.

The Ministry of the Attorney General has released a document written by an assistant Crown attorney detailing her approach to prosecuting HIV non-disclosure cases.

The document discusses the admissibility of an accused person’s statements to public health as incriminating evidence — something human rights lawyers and HIV activists find troubling.

“The risk has always been that the use of an accused’s statements to public health would put a damper on HIV positive peoples’ willingness to be frank with public health, which puts their own health at risk and the population also at risk as well,” says Toronto lawyer Marcus McCann.

McCann says this approach could have a chilling effect on whether people with HIV will seek help from health professionals.

McCann obtained the document through a Freedom of Information request and subsequent years-long legal battle with the provincial government over whether the document should be disclosed.

Karen Shea, an assistant Crown attorney, wrote the document during the 2009 case of Johnson Aziga, an HIV-positive man who was convicted of murder for failing to disclose his status when he had unprotected sex with two women.

In the absence of an official set of prosecutorial guidelines for HIV non-disclosure cases, McCann first requested the document in the hope it could help discussions between the government and organizations that have been pushing the issue.

In November, the Divisional Court ordered MAG to release the document, and the provincial government decided not to appeal the decision.

The document includes a list of arguments against HIV non-disclosure criminalization and responses to them, which McCann says shows the government was aware of those critiques and had discarded them.

McCann says in the past there has been a view among HIV activists that they could push MAG to make meaningful change in the area if they could educate the ministry on current science.

“One of the things this document shows is that MAG knew full well what the concerns were with their approach and they were proceeding full steam ahead,” McCann says.

“It really is a document to my mind that is focused on prosecution at all costs and doesn’t take into consideration the kinds of situations in which a more lenient approach might be justified.”

Clare Graham, a spokeswoman for Attorney General Yasir Naqvi, says the document is not an official set of prosecutorial guidelines.

“The document is the work product of an individual Assistant Crown Attorney based on her knowledge and experience prosecuting HIV exposure and transmission cases,” she said in an email.

“The Assistant Crown Attorney prepared this document not only for her own use but also to assist her colleagues in a difficult and complex area of the law; however, this document is not a Ministry issued policy or guideline.”

In the legal proceedings concerning the document’s disclosure, MAG conceded that multiple versions of the document existed and that it had been shared on an intranet accessible to all Crown attorneys.

The document was disclosed as the Ontario Working Group on Criminal Law and HIV Exposure called for a moratorium on prosecutions in HIV non-disclosure cases, unless they involve allegations of intentional transmission, while discussions take place to develop an official set of guidelines.

The working group and its member organizations have been working for years towards the development of a set of prosecutorial guidelines.

The working group has obtained a commitment in the past from the provincial government, only to never see any guidelines materialize, Peck says.

“Unfortunately the dialogue over the past seven or more years, from our perspective, has not been meaningful,” says Ryan Peck, the executive director of the HIV & AIDS Legal Clinic Ontario, who sits on the working group.

But Peck says the working group is hopeful that it will be able to engage in meaningful dialogue with Naqvi, who has been attorney general since June.

Peck says the guidelines will need to be developed to bring the prosecutions of these cases in line with up to date science and human rights principles.

The group most recently met with Naqvi at a roundtable discussion on the topic on Dec. 5.

The federal government issued its own statement on World AIDS Day in early December acknowledging the effects of the over-criminalization of HIV non-disclosure. The statement, attributed to Justice Minister Jody Wilson-Raybould, committed to examining “the criminal justice system’s response to non-disclosure of HIV status,” saying this could include a “review of existing charging and prosecution practices, as well as the possible development of prosecutorial guidelines.”

Graham says MAG is committed to working with the federal government to “examine the law in this important area.”

McCann says he hopes the disclosure of the document will mean that both CLHE and MAG are starting future discussions on and equal footing.

“My hope is that Yasir Naqvi, the attorney general, and the ministry of the attorney general approach the next phase of this process with honesty and integrity and that they come open to making some changes,” he says.

“I feel like this document is part of a story and the last chapter is yet to be written.”

Canada: Ontario Court of Appeal rules that HIV disclosure by police in news releases does not violate a person's constitutional rights

Court ruling sets ‘low bar’ for police to disclose HIV status

Ontario Court of Appeal finds police didn’t violate suspect’s Charter rights by disclosing health status in news release

If a person charged with a crime is found to be HIV-positive, that could be enough for police to disclose that very personal and sensitive information to the public.

That’s one takeaway from an Ontario Court of Appeal decision that advocates say is cause for concern for those living with HIV or AIDS, which continue to attract stigma and misunderstanding despite evolving science.

The province’s top court overturned a lower court decision last week, ruling that that Durham Regional Police did not breach former youth pastor Kris Gowdy’s constitutional rights following his 2012 arrest for Internet child luring when they disclosed in a news release that he was HIV-positive.

Gowdy was arrested after arriving at the home of someone who had been posing as a 15-year-old boy online, to perform oral sex, only to discover the individual was a police officer. Police searched his car and discovered documentation and medication proving he was HIV-positive. The arrest and Gowdy’s HIV status were widely reported on at the time, making international headlines.

Writing for a unanimous three-judge panel, Justice David Watt said the police force’s actions in disclosing Gowdy’s HIV status were “clearly in retrospect not advisable.”

But the judges held that the release of that information did not violate Gowdy’s right to security of the person because there had been no finding at trial that the disclosure had a psychological effect on Gowdy beyond the impact already caused by the charge he was facing.

They also concluded that provincial privacy legislation contains an exemption for municipal institutions to release personal information that they have lawfully gathered if it is for a “consistent purpose.”

In this case, Watt said that the “consistent purpose” was to further the investigation “by inviting responses from other sexual partners of Gowdy” who may be at risk of transmission.

“The police had reasonable suspicion; reasonable grounds to believe further offences had been committed was not required for the purpose of the media release,” Watt said.

The court dismissed Gowdy’s appeal of the conviction, but allowed the Crown’s appeal. The court substituted Gowdy’s two-year conditional sentence, which he served at home, with a one-year jail term, although it said he should not be re-arrested because he had already served his sentence.

As noted by the Court of Appeal, the lead investigator in the case did not seek legal advice or the permission of the police chief or his designate before issuing the news release, did not seek medical advice to find out the likelihood of transmission of the virus through a sexual activity such as fellatio, and did not seek to confirm Gowdy’s assertion that his medication had rendered his viral load so low that it made transmission unlikely.

Gowdy also never admitted in his interview with police that he had had sexual contact with individuals who were unaware of his HIV status, the court said.

“The lead investigator testified that, to his knowledge, he had never before investigated someone with HIV in his 23 years of policing,” Watt wrote. “The investigating officer acknowledged he did not consider the Charter rights of Kris Gowdy before requesting the media release.”

Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, one of the interveners in the appeal, said in an interview with the Star that police should have turned their minds to what the actual risks of transmission may have been in this case.

“I can’t think what that ‘reasonable suspicion’ is actually founded on. I don’t think the suspicion is a reasonable one, all the information the officer had was that this accused was HIV-positive,” Elliott said.

“This is a case in which merely finding out someone has HIV was seen by police as sufficient for putting out a press release, basically engaging in a fishing expedition.”

He also described the court’s interpretation of the “consistent purpose” exemption as “very, very liberal,” saying it sets an “extraordinarily low bar” that police have to clear before releasing a person’s HIV status.

The case highlights what advocates say is a lack of proper training for officers in dealing with HIV-positive individuals and the absence of clear statutes governing the disclosure of such information by police.

Durham police spokesman Dave Selby declined to comment on the court’s decision.

“In general, I can say that we regularly review our policies to ensure they are consistent with all applicable laws and judicial decisions. We will review this decision carefully, as well,” he said in an email. “We will continue to respect the fundamental privacy rights of all citizens while balancing our community safety responsibilities.”

Gowdy’s appeal lawyer, Russell Silverstein, said his client is considering whether to seek leave to appeal to the Supreme Court of Canada.

“When it comes to one’s HIV status, different considerations apply, it’s not the same as telling the world that the accused is suffering from cancer or some other disease,” he told the Star.

“You can’t say that the release of such information is per se a Charter breach, it’s going to depend on the circumstances, and the question is: what should the appropriate test be for the disclosure of that particular information?”

A former pastor with the Free Methodist Church of Canada, Gowdy posted an ad on Craigslist in 2012 looking for men interested in receiving oral sex, specifying he was looking for “under 35, jocks, college guys, skaters, young married guy.”

A detective with the OPP’s Child Sexual Exploitation Section homed in on the use of the words “young,” “skater,” and “under 35” in Gowdy’s ad, and began an online conversation with him, posing as a 15-year-old boy.

Shortly after agreeing to meet the “boy” for oral sex, Gowdy was arrested. He maintained in court that he never actually believed the person he was conversing with was 15 years old.

Gowdy, a former pastor with the Free Methodist Church of Canada, had kept his sexual orientation secret from his family and church, his 2014 trial heard. He had no prior criminal record and there were no complaints about inappropriate behaviour from the ministries where he had worked as a pastor.

“I regret incredibly my actions, they were foolish and inappropriate,” Gowdy told the Star in an interview in 2014. “It feels to me like there should be some kind of reprimand to these officers at the minimum.”

At trial, Justice Michael Block found that the release of Gowdy’s HIV status violated his constitutional rights. He circumvented the mandatory minimum sentence of one year in jail for the luring offence, and instead imposed a two-year conditional sentence, which Gowdy served at home. Gowdy’s name was to remain on the sexual offender registry for 20 years.

“Mr. Gowdy had a right to make his own choices concerning the disclosure of his HIV status,” Block said. “No doubt he would have chosen his own method and different timing if he ever determined to inform those near to him. Absent evidence of serious risk of transmission and rigorous compliance with statute, no one had the authority to make that decision for him.”