AIDS 2016: Justice Edwin Cameron addresses delegates at Durban AIDS conference

I owe my life to you, says judge

19 July 2016

“The fact that I am here today at all is a tribute to the activists, researchers, doctors and scientists in the audience,” Judge Edwin Cameron told delegates to the Durban Aids conference, delivering the Jonathan Mann memorial address. He asked sex workers and transgender people to join him on stage. His godson Andy Morobi also addressed the conference.

It is a great privilege and an honour to be here. At the start of a very busy conference, with many stresses and demands and anguishes, I want to start by asking us to pause quietly for just a few moments.

It has been 35 years since the Western world was alerted to Aids. The first cases of a baffling, new, terrifying, unknown syndrome were first reported in the northern summer of 1981. The reports were carried in the morbidity and mortality weekly reports of the CDC on 5 June 1981.¹

These last 35 years, since then, have been long. For many of us, it has been an arduous and often dismaying journey.

Since this first report, 35 million people have died of Aids illnesses² – in 2015 alone, 1.1 million people.^³

We have felt the burden of this terrible disease in our bodies, on our minds, on our friends and colleagues, on our loved ones and our communities.

Aids exposes us in all our terrible human vulnerability. It brings to the fore our fears and prejudices. It takes its toll on our bodily organs and our muscles and our flesh. It has exacted its terrible toll on our young people and parents and brothers and sisters and neighbours.

So let us pause, first, in remembrance of those who have died –

those for whom treatment didn’t come in time
those for whom treatment wasn’t available, or accessible
those denied treatment by our own failings as planners and thinkers and doers and leaders
those whom the internal nightmare of shame and stigma put beyond reach of intervention and help.
These years have demanded of us a long and anguished and grief-stricken journey.
But it has also been a journey of light – a journey of technological, scientific, organisational and activist triumph.

So we must pause, second, to celebrate the triumphs of medicine, science, activism, health care professional dedication and infrastructure that have brought ARVs to so many millions.

Indeed, the fact that I am here today at all is a tribute to the activists, researchers, doctors and scientists in the audience.

Many of you were responsible for the breakthroughs that led to the combination anti-retroviral treatment that I was privileged to start in 1997 – and which has kept me alive for the last 19 years.

I claim no credit and seek no praise for surviving. It felt like an unavoidable task.

All of us here today who are taking ARVs – let us raise our hearts and humble our heads in acknowledgement of our privilege – and often plain luck – in getting treatment on time. That treatment has given us life.

So let us pause, third, to honour the doctors – the scientists – the researchers – the wise physicians and strong counsellors who have saved lives and healed populations in this epidemic.

As important, fourth, let us pause to honour the activists, whose work made treatment available to those who would not otherwise have received it.

We pause to honour the part, in treatment availability and accessibility, of angry, principled and determined activists, in South Africa’s Treatment Action Campaign and elsewhere. For millions of poor people, their anger brought the gift of life.

Without their courage, strategic skill and passion, medication would have remained unimaginably expensive, out of reach to most people with HIV. They led a successful campaign that saved millions of lives.

The fact that many millions of people across the world are, like me, receiving ARV treatment, is a credit to their work.

They taught us an important lesson. Solidarity and support are not enough. Knowledge and insight are not enough. To save lives, we need more. We need action – enraged, committed, principled, strategically ingenious action.

They refused to acquiesce in a howling moral outrage. This was the notion that life-saving treatment – treatment that was available, and that could be cheaply manufactured – would not given to poor people, most of them black, because of laws protecting intellectual property and patent-holders’ profits.

The Treatment Action Campaign and their world-wide allies frontally tackled this. They changed the way we think about healthcare and essential medicines access.

What is more, without the Treatment Action Campaign, President Mbeki’s nightmare flirtation with Aids denialism between 1999 and 2004 would never have been defeated.

Instead, the TAC took to the streets in protest. They demanded treatment for all. And when President Mbeki proved obdurate, they took to the courts.

Because of my country’s beautiful Constitution, they won an important victory. Government was ordered to start making ARV treatment publicly available.

Today my country has the world’s largest publicly provided anti-retroviral treatment program.⁴ More than 3.1 million people, like me, are receiving ARVs from the public sector.⁵

I am particularly proud that when someone with HIV registers for treatment in South Africa, they should not be asked to show an identity document or a passport or citizenship papers. That is as it should be. The imperatives and ethics of public health know no artificial boundaries.

In the sad history of this epidemic, the triumphs of Aids activists, on five continents, are a light-point of joy.

So there is much to celebrate. I celebrate the joy of life every day with the medication – which keeps a deadly virus effectively suppressed in my arteries and veins, enabling me to live a life of vigour and action and joy.

But we must not forget that Aids continues to inflict a staggering cost on this continent and on our world.

What is more important than my survival, and that of many millions of people in Africa and elsewhere on successful ARV treatment, is those who are not yet receiving it.

There still remains so much that should be done. More importantly, there still remains so much that can be done.

Too many people are still denied access to ARVs. In South Africa, despite our many successes, well over six million people are living with HIV. And, though about half of South Africans with HIV are still not on ARVs,⁶ from September this year ARVs will be provided to all with HIV, regardless of CD4 count.

Globally, of the 36.7 million people living with HIV at the end of 2015, fewer than half had access to ARVs.⁷

Worse, the pattern of ARV availability is one that reflects our own weaknesses and vices as humans – our prejudices and hatreds and fears, our selfish claiming for ourselves what we do not grant to others.

Most of those still in need of ARVs are poor, marginalised and stigmatised – stigmatised by poverty, sexual orientation, gender identity, by the work they do, by their drug-taking and by being in prison.

Dr Jonathan Mann, to whom this lecture is dedicated, did pioneer work in recognising the links between health and human rights. He stressed that to address Aids, “we must confront those particular forms of inequity and injustice – unfairness, discrimination – not in the abstract, but in its specific and concrete manifestations which fuel the spread of Aids.”⁸

He recognised that the perils of HIV are enormously increased by laws that specifically criminalise transmission of HIV and exposure of another to it. This was also confirmed by the wonderful and authoritative work the Global Commission on HIV and the Law has recently done.

These laws are vicious, ill-considered, often over-broad and intolerably vague. By criminalising undefined “exposure”,⁹ they ignore the science of Aids, which shows how difficult HIV is to transmit.¹⁰ Apart from driving those at risk of HIV away from testing and treatment, they enormously increase the stigma that surrounds HIV and Aids.

Across this beautiful continent of Africa, men who have sex with men (MSMs) remain chronically under-served. They lack programs in awareness, education, outreach, condom provision and access to ARVs. As a recent study by Professor Chris Beyrer and others has shown, we have the means to end HIV infections and Aids deaths amongst men having sex with men. Yet “the world is still failing”.¹¹

For this, there is one reason only – ignorance, prejudice, hatred and fear. Theworld has not yet accepted diversity in gender identity and sexual orientation asa natural and joyful fact of being human.

Seventy eight countries in the world continue to criminalise same-sex sexual conduct. Thirty four of them are on this wide and wonderful continent of Africa.

It is a shameful state of affairs. As a proudly gay man I have experienced the sting of ostracism, of ignorance and hatred. But I have also experienced the power of redeeming love and acceptance and inclusiveness.

We do not ask for tolerance, or even acceptance. We claim what is rightfully ours. That is our right to be ourselves, in dignity and equality with other humans.

Discrimination on the ground of sexual orientation or gender identity is a colossal and grievous waste of time and social energy.

As our beautiful Archbishop Desmond Tutu has said, when we face so many devastating problems – poverty, drought, disease, corruption, malgovernance, war and conflict – it is absurd that we waste so much time and energy on sexual orientation (“what I do in bed with whom”.)¹²

The sooner we accept the natural fact that gender and orientation diversity exists naturally between us, the quicker we can join together our powers of humanity to create better societies together.

The same applies to sex workers. Sex workers are perhaps the most reviled group in human history – indispensable to a portion of mostly heterosexual males in any society, but despised, marginalised, persecuted, beaten up and imprisoned.

Sex workers work.¹³ Their work is work with dignity.

Why do people do sex work? Well, ask a sex worker –

To buy groceries, and pay their rent, to study, to send their children to school, and to send money to their parents and extended family.
It is hard work. Perilous work. Sex workers have a tough, dangerous job. They deserve our love and respect and support – not our contempt and condemnation.

They deserve police protection, not exploitation and assault and humiliation.

More importantly, they deserve access to every bit of HIV knowledge and power that can protect them from infection and can help them to protect others from infection.^¹⁴

Pre-exposure prophylaxis (PrEP) works for sex workers.¹⁵ It should be made available to them, as a matter of urgent priority, as part of all national Aids treatment programs.

In September 2015, the World Health Organization, recognizing PrEP’s efficacy, recommended that PreP be provided to all “people at a substantial risk of HIV,” including sex workers.^¹⁶

When we in South Africa launched our three-year National Sex Worker HIV Plan in March 2016, we proposed providing PrEP to sex workers. WHO recognized South Africa as the “first country in Africa to translate this recommendation into national policy.”¹⁷

Beginning last month (June 2016), the first programs began providing daily PrEP to sex workers in South Africa.¹⁸

Criminalising sex workers is a profound evil and a distraction from the important work of building a humane society.¹⁹

Especially vulnerable too are injecting drug users. Upon them are visited the vicious consequences of perhaps the most colossal public policy mistake of the last 80 years – the war on drugs.

The vulnerability of injecting drug users is evident in the high percentage of injecting drug users with HIV. Throughout the world, of about 13 million injecting drug users, 1.7 million (13%) are living with HIV.^²⁰

They are denied elementary life-saving services. This is not on the supposedly “dark” continent of Africa – but in the United States of America. If you want an example of evidence-ignoring public policy, that causes loss of life and injury, and spread of HIV, do not look complacently to President Mbeki’s South Africa twelve years ago – look to the United States of America, now, and the federal government’s refusal to make needle substitution available to IDUs . While the US government’s decision to partially lift this ban on federal funding for needle exchange programs earlier this year is a welcome development, this decision was only spurred by an outbreak of new HIV cases among drug users in the United States,^²¹ and the delay has undoubtedly resulted in preventable HIV infections.^²²

Injecting drug users living with HIV are further denied access to treatment. And the United States and Canada, healthcare providers are less likely to prescribe ARVs for injecting drug users, because they assume that IDUs are less likely to adhere to treatment and/or will not respond to it. This is in spite of research showing similar responses and survival rates for those who do have access to ARVs.^²³

We know exactly what we have to do to tame this epidemic.

We have to empower young people and especially young girls, to make health seeking choices when thinking about sex and when engaging in it.^²⁴

We have to redouble our prevention and education efforts.

Prevention remains a key necessity in all our strategies about Aids.

Second, we have to test, test, test, test, test, test and test. We cannot promote consensual testing enough. Testing is the gateway to knowledge, power, understanding and action.

Without testing there can be no access to treatment. The more we test, the more we know and the more we can do.

Testing must always be with the consent of the person tested. But we have to be careful that we do not impose unnecessarily burdensome requirements for HIV testing.

HIV is now a fully medically manageable disease. Consent to testing should be capable of being implied and inferred. We must remove barriers to self-testing.

I speak of this with passion – because, by making it more difficult for health care workers to test, we increase the stigma and the fear surrounding HIV.

We must make it easier to test, not harder. Gone are the terrible days when testing was a gateway only to discrimination, loss of benefits and ostracism.

In all this, we must be attentive to the big understated, underexplored, under-researched issue in the epidemic. That is the effect of the internalisation of stigma within the minds of those who have HIV and who are at risk of it.

Internalised stigma has its source in outside ignorance, hatred, prejudice and fear.

But these very qualities are imported into the mind of many of us with HIV and at risk of it.

Located deeply within the self, self-blame, self-stigma and self-paralysing fear are all too often deadly.^²⁵

We must recognise internalised stigma. I experienced its frightening, deadening effects in my own life. Millions still experience it. We must talk about it. And we must find practical ways to reduce its colossally harmful effects.

And, most of all, we must fix our societies. As my friend and comrade, Mark Heywood, has recently written, we have medically tamed Aids. But we have not tamed the social and political determinants of HIV, particularly the overlapping inequalities on which it thrives – gender, education, access to health care, access to justice. That is why prevention strategies are not succeeding.

A better response to HIV, Mark rightly says, needs a better world. Governments must deliver on their human rights obligations. Activists and scientists must join struggles for meaningful democracy, gender equality and social justice. Activists must insist on equal quality education, health and social services; investment in girls and plans backed by money to stem chronic hunger and malnutrition.²⁶

But, to end, I want to return to the light points in our struggle against the effects of this disease over the last 30 years.

I want to end with a thrilling fact – this is that, unexpectedly, joyously, beyond our wildest dreams, perinatal and paediatric ARVs have proved spectacularly and brilliantly successful.

First, let us rejoice that perinatal transmission of HIV can be completely eliminated. It was about this that the Treatment Action Campaign fought President Mbeki’s government all the way to the Constitutional Court, the Court in which I am now privileged to sit.

Now we know how effectively we can protect babies at birth and before birth from infection with HIV.

In South Africa, the rate of mother-to-child transmission of HIV is now reduced to 4%.²⁷ Worldwide, in 2015, 77% of all pregnant women received treatment to prevent perinatal transmission of HIV.²⁸

Last year, Cuba became the first country to eliminate mother to child transmission of HIV entirely.^²⁹ In 2016, Thailand, Belarus, and Armenia have also reached this milestone.^³⁰

More even, fifteen years ago we didn’t know how well babies and toddlers would tolerate ARVs.

We didn’t know just a decade ago how young children born with HIV would thrive on ARVs.

And would they take their ARVS? Would they grow to normalcy?

Instead of this uncertainty, we now know, triumphantly, that ARVs work wonderfully for children born with HIV.

I want to rejoice in the beauty and vigour of my godson Andy Morobi. Andy and I became family twelve years ago, at the end of 2004.

He is young, energetic, ambitious and enormously talented. He was born with HIV. He has been on ARVs for the last eight years. Like me, he owes his life to the medical and social miracle of anti-retroviral treatment.

I want to end on another light point. I want to honour the treatment activists from Africa, Europe, North America, South America, Australasia and Asia, who fought for justice in this epidemic.

I want to honour them, like Dr Jonathan Mann, to whom this lecture is dedicated. Like my mentor, Justice Michael Kirby of Australia, for their energy and courage and determination and sheer resourceful and resilience in fighting for justice in this epidemic.³¹

And I want to end by celebrating the fact that we have sex workers here this morning. They are wearing the T-shirts in the slide a few minutes ago. The T-shirts say: “THIS IS WHAT A SEX WORKER LOOKS LIKE”.

And, most of all, as a gay white man who has lived a life privileged by my race and my profession and my maleness, I ask that we celebrate the astonishing courage of transgender activists, of lesbians and gay men across the continent of Africa and in the Caribbean.

They are claiming their true selves. They do so often at the daily risk of violence, attack, arrest and imprisonment.

They have the right to be their beautiful selves. They are claiming a right to be full citizens of Africa, the Islands and the world. They have done so at extraordinary risk.

They know that they cannot live otherwise.

It is to these brave people that this conference should be dedicated: to the sex workers, injecting drug users, migrants, lesbian, gays and transgendered people, the children, the activists, those in prison, the poor and the vulnerable.

It lies within our means to do everything that will ensure whole lives and whole bodies for everyone with HIV and at risk of it.

All it requires is a passion and a commitment and a courage starting within ourselves. Starting within each of ourselves. Starting now.

Thank you very much.

For footnotes please see original articles in GroundUp

Justice Edwin Cameron: Keynote Speech to Beyond Blame @ AIDS 2016

Justice Edwin Cameron’s closing keynote speech to Beyond Blame: Challenging HIV Criminalisation, a pre-conference to AIDS 2016, held on Sunday 17th July 2016 in Durban, South Africa, convened by HIV JUSTICE WORLDWIDE.

BEYOND BLAME
Challenging HIV Criminalisation @ AIDS 2016, Durban

(29 min, HJN, South Africa, 2016)

On 17 July 2016, approximately 150 advocates, activists, researchers, and community leaders met in Durban, South Africa, for Beyond Blame: Challenging HIV Criminalisation – a full-day pre-conference meeting preceding the 21st International AIDS Conference (AIDS 2016) to discuss progress on the global effort to combat the unjust use of the criminal law against people living with HIV.

Attendees at the convening hailed from at least 36 countries on six continents (Africa, Asia, Europe, North America, Oceania, and South America).

Beyond Blame was convened by HIV Justice Worldwide, an initiative made up of global, regional, and national civil society organisations – most of them led by people living with HIV – who are working together to build a worldwide movement to end HIV criminalisation.

The meeting was opened by the Honourable Dr Patrick Herminie, Speaker of Parliament of the Seychelles, and closed by Justice Edwin Cameron, both of whom gave powerful, inspiring speeches. In between the two addresses, moderated panels and more intimate, focused breakout sessions catalysed passionate and illuminating conversations amongst dedicated, knowledgeable advocates

Mexico: 150 police officers undergo training in HIV, AIDS and STIs in Oaxaca

English Version (Scroll down for Spanish text)

COESIDA Trained Municipal Police in HIV, AIDS and STIs

To contribute to the full training of Public Safety officers, from 4 to 8 July, staff of the State Council for the Prevention and Control of AIDS (COESIDA) trained around 150 members of the Municipal Police Force in Oaxaca de Juarez, in HIV, AIDS and other sexually transmitted infections. Ofelia Martinez Lavariega, head of the Training Department of COESIDA said that, for the third consecutive year, the workshops were conducted through the Police Academy, in coordination with the Commission for Public Safety, and Traffic and Municipal Civil Protection.

“The goal is to continue the work of awareness, prevention and detection of HIV we have carried on since 2013,” she said, while noting that only last year 120 officers were trained. This year the number of participants grew to 150, reflecting the interest in being trained in issues related to HIV and AIDS, such as masculinity and sensitive language, issues which closed the workshops this year . “This last issue is very important if we consider the characteristics of their work, and the fact that police officers have to deal with key groups – sex workers, trans* people – and that sometimes they do not know how to treat them, and without meaning to, come to violate their human rights, “said Martin Trápaga Sibaja, COESIDA trainer and psychologist.

In 2015, the Commissioner of Public Safety, Traffic and Municipal Civil Protection, José Luis Echeverria Morales, stressed the importance of carrying on with such activities which undoubtedly contribute to the integral training of security forces in the capital’s City Hall. “Today we witness greater interest from public safety officers in the workshops. Initially, the majority had no knowledge about the basic information about HIV, AIDS, about modes of transmission and even about the correct way to put a condom; but now, each time there are more who join the program and also to convey the messages to their peers, take them home and that’s very important, “he said.

In addition to the participation of psychologist Martin Trápaga Sibaja, the police officers were trained by Doctor Angeles Pérez Silva and Psychologist Angelica Castro Pineda, who invited them to exercise their sexuality responsibly and with a shared responsibility.

Capacita COESIDA a policías municipales en materia de VIH, Sida e ITS

A fin de contribuir a la formación integral de las y los elementos de Seguridad Pública, del 4 al 8 de julio, personal del Consejo Estatal para la Prevención y Control del sida (COESIDA) capacitó a alrededor de 150 elementos de la Policía Vial y Municipal de Oaxaca de Juárez, en materia de VIH, sida y otras infecciones de transmisión sexual. Ofelia Martínez Lavariega, jefa del Departamento de Capacitación del COESIDA, indicó que por tercer año consecutivo los talleres se realizan de manera coordinada con la Comisión de Seguridad Pública, Vialidad y Protección Civil Municipal, a través de la Academia de Policía.

“El objetivo es continuar con el trabajo de sensibilización, prevención y detección del VIH que hemos hecho desde 2013”, señaló, al tiempo de destacar que tan solo el año pasado fueron capacitados 120 elementos. Para este año –dijo- el número de participantes creció a 150, lo que refleja el interés por estar informados sobre temas relacionados con el VIH y sida, tales como la masculinidad y lenguaje sensible, con los que se clausuraron los talleres de este año 2016.

“Este último tema es muy importante si consideramos que por las características de su trabajo, las y los policías tienen que lidiar con grupos clave -trabajadoras y trabajadores sexuales o personas trans- a quienes en ocasiones no saben cómo tratar, y sin pretenderlo, llegan a violentar sus derechos humanos”, sostuvo Martín Trápaga Sibaja, psicólogo capacitador del COESIDA.

En el año 2015, el Comisionado de Seguridad Pública, Vialidad y Protección Civil Municipal, José Luis Echeverría Morales, resaltó la importancia de dar seguimiento a este tipo de actividades que sin duda, contribuyen a la formación integral de los elementos de seguridad del Ayuntamiento capitalino.

“Hoy vemos un mayor interés de los elementos de seguridad pública en los talleres. Al principio, la mayoría desconocía la información básica sobre el VIH, el sida, las formas de transmisión e incluso, la forma correcta de colocar un condón; pero ahora, cada vez son más los que se suman al programa y además de transmitir el mensaje entre sus compañeros, lo llevan a sus hogares y eso es muy importante”, aseguró. Además de la participación del psicólogo Martín Trápaga Sibaja, las y los policías fueron capacitados por la médica Ángeles Pérez Silva y la psicóloga Angélica Castro Pineda, quienes los invitaron a ejercer su sexualidad de manera responsable y compartida.

Liga tomada del portal OaxacaCapital.com http://oaxacacapital.com/dependencias/capacita-coesida-a-policias-municipales-en-materia-de-vih-sida-e-its/

Sweden: Civil societies organisations call for guidelines to prosecutors in cases of HIV-criminalisation

“Major Uncertainty about HIV in Courts – The Prosecutor must act”

Open letter to the Prosecutor General Anders Perklev:

The organizations Hiv-Sweden, RFSL and RFSU call for guidelines for prosecutors for prosecutions against people living with HIV who are at risk of transmitting the virus via sexual contacts.

Signatory organizations promote the development of HIV in Sweden, how people living with HIV perceive their situation, the way in which case law looks and the medical successes in the field. Since 2013, the knowledge base “Infectiousness in Treated HIV Infection” has been developed by the Public Health Authority and the Reference Group for AntiViral Therapy (RAV), which shows that there is a negligible risk of HIV transmission during well-treated treatment.

Since 2016, there is also a document written by medical experts in which the disability rate in HIV is reduced from 40-60% to 0-10%.

These documents should have a major impact on the prosecution of persons, for whom crimes are prosecuted, how damages for a possible transfer should be measured and how seriously the chronic disease HIV should be considered.

RFSU, RFSL and Hiv-Sweden can say that there is great uncertainty in courts and justice in general how to handle the progress made in the medical field regarding HIV. There is no precedent since the knowledge base came and, as the Prosecutor is aware, no trial was given in the Supreme Court for Case B 2152-13, the Court of Appeal over Skåne and Blekinge, in which a person living with HIV and had a so-called well-treated treatment was released from criminal liability.

Signatory organizations welcome the Court of Appeal’s judgment, which clearly takes into account medical success, contagiousness and other facts in the case. Unfortunately, the Supreme Court (in connection with the grant of a review) did not refer to the decision NJA 2004 p. 176, which means that the judgment of the Court of First Instance can not be regarded as prejudicial.

Signatory organizations find it deeply unfortunate that the Supreme Court did not test the case partly referring to precedents no longer based on current knowledge. This means that the legal situation is unchanged and unclear, which creates legal uncertainty for people living with HIV.

Regrettably, we can say that the courts have begun to take care of the medical successes that have been made since 2004, and in the days a new intelligence judgment in which a man living with HIV and standing on a well-treated treatment is released from criminal liability (see Day’s Juridics 2016- 05-31 ). We hope that Objective B 212-15 from Uppsala District Court will proceed in the judicial system and create a new practice in this area.

The judgment states that the risk of HIV transmission to unprotected intercourse is so small in case of well-being treatment that one can not reasonably expect the effect of transfer and thus does not fulfill the objective crimes for the development of danger to another.

Even though the profession assesses the risk of HIV transmission to be neglected in well-preserved HIV even in unprotected intercourse, prosecutors continue to famble as to which acts will lead to prosecutions and which crimes are prosecuted. For example, some prosecutors choose to prosecute people living with HIV, with well-treated treatment, without the intention of transmitting HIV and there was no transfer for attempted abuse, which is neither reasonable nor correct.

RFSU, RFSL and HIV-Sweden want guidelines from the RA to the prosecutor who takes into account the major medical achievements and the knowledge base available to create a fairness in how the judicial system manages this already vulnerable group of people living in our society HIV.

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“Stor osäkerhet om HIV hos domstolar och rättsväsende – riksåklagaren måste agera“

Öppet brev till riksåklagaren Anders Perklev:

Organisationerna Hiv-Sverige, RFSL och RFSU efterlyser riktlinjer för åklagare avseende åtal mot personer som lever med hiv och som riskerar att överföra viruset via sexuella kontakter.

Undertecknande organisationer följer utvecklingen noga avseende hiv i Sverige, hur personer som lever med hiv uppfattar sin situation, hur rättspraxis ser ut och de medicinska framgångar som görs på området. Sedan år 2013 finns kunskapsunderlaget “Smittsamhet vid behandlad hivinfektion” framtaget av Folkhälsomyndigheten och Referensgruppen för AntiViral terapi (RAV), i vilket det framgår att det föreligger försumbar risk för överföring av hiv vid välinställd behandling.

Sedan år 2016 finns det även ett dokument skrivet av medicinska experter i vilket invaliditetsgraden vid hiv sänks från tidigare 40-60 % ned till 0-10 %.

Dessa dokument borde få stor inverkan på när personer åtalas, för vilka brott personer åtalas, hur skadestånd vid en eventuell överföring bör mätas och hur allvarlig den kroniska sjukdomen hiv skall betraktas vara.

RFSU, RFSL och Hiv-Sverige kan konstatera att det råder stor osäkerhet i domstolar och rättsväsendet i övrigt hur de ska hantera de framsteg som görs på det medicinska området gällande hiv. Det saknas prejudikat sedan kunskapsunderlaget kom, och som riksåklagaren väl känner till gavs inte prövningstillstånd i högsta domstolen för mål B 2152-13, Hovrätten över Skåne och Blekinge, i vilket en person som lever med hiv och hade en så kallad välinställd behandling friades från straffansvar.

Undertecknande organisationer välkomnar hovrättens dom, som tydligt tar hänsyn till medicinska framgångar, smittsamhetsdokumentet och fakta i övrigt i målet. Dessvärre hänvisade Högsta domstolen (i samband med att prövningstillstånd inte gavs) till avgörandet NJA 2004 s. 176 vilket innebär att hovrättens dom inte kan anses vara prejudicerande.

Undertecknande organisationer finner det djupt olyckligt att Högsta domstolen dels inte prövade målet dels hänvisade till prejudikat som inte längre baserar sig på aktuell kunskap. Detta innebär att rättsläget är oförändrat och otydligt, vilket skapar en rättsosäkerhet för personer som lever med hiv.

Glädjande nog kan vi konstatera att domstolarna ändock har börjat ta till sig av de medicinska framgångar som gjorts sedan 2004 och i dagarna kom en ny underrättsdom i vilken en man som lever med hiv och står på välinställd behandling frias från straffansvar (se Dagens Juridik 2016-05-31) . Vi hoppas att mål B 212-15 från Uppsala tingsrätt skall gå vidare inom rättsväsendet och skapa en ny praxis på området.

I domen konstateras att risken för överföring av hiv vid oskyddade samlag är så pass liten vid välinställd behandling att man inte rimligen kan förvänta sig effekten att överföring sker, och att det därmed inte uppfyller de objektiva brottsförutsättningarna för framkallande av fara för annan.

Trots att professionen bedömer risken för överföring av hiv vara försumbar vid välinställd hiv även vid oskyddade samlag fortsätter åklagare att famla när det gäller vilka gärningar som skall leda till åtal och vilka brott som åtalas för. Vissa åklagare väljer till exempel att åtala personer som lever med hiv, med välinställd behandling, utan uppsåt att överföra hiv och där ingen överföring skett för försök till misshandel vilket varken är rimligt eller korrekt.

RFSU, RFSL och Hiv-Sverige önskar riktlinjer från RÅ till landets åklagare som tar hänsyn till de stora medicinska framgångar som gjorts och det kunskapsunderlag som finns, för att skapa en rimlighet i hur rättsväsendet hanterar denna redan utsatta grupp personer i vårt samhälle som lever med hiv.

US: National Association of Criminal Defense Lawyers pass resolution opposing all laws that base criminal liability and/or penalty enhancements on one's HIV status rather than on the intent to harm another individual

On May 21, 2016, at the spring meeting of the National Association of Criminal Defense Lawyers (NACDL), the board of directors unanimously adopted a resolution opposing all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual. Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more.

As set forth in NACDL’s resolution, “the focus on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit the virus, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization.”

“Laws such as these are textbook examples of flawed criminal justice policy,” said NACDL President E.G. “Gerry” Morris. “Furthermore, as a public health matter, these laws operate as an impediment to what should be the shared goal here – ending the epidemic. NACDL stands with the HIV/AIDS-affected community and others in unambiguously declaring that HIV is not a crime. It should not be treated as such. Rather than irrationally deploying the criminal law to stigmatize and punish the more than 1.2 million people in the United States living with HIV, we need to work together to advance policies that encourage, rather than deter people from learning of their HIV status and seeking life-saving treatment.”

NACDL’s May 21, 2016 resolution is below.

In addition, audio from a May 5, 2016 teleconference co-sponsored by NACDL, the Center for HIV Law and Policy, and the American Bar Association AIDS Committee – When Sex is a Crime and Spit is a Dangerous Weapon: A Teleconference on HIV Criminal Laws – is available here.

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Concerning HIV Criminalization

Las Vegas, Nevada

May 21, 2016

Introduction

Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more. The focus of these laws on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit HIV, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization. In sum, these laws do not comport with well-established American criminal law principles concerning intent, harm, and proportionality.

The bulk of HIV criminalization laws were enacted prior to the availability of effective antiretroviral therapy for HIV, which not only can extend significantly the lifespan of those with HIV, increasing the probability that a person with HIV never develops AIDS, but also has been shown in studies to dramatically reduce the risk of transmission by those carrying the virus. An obvious prerequisite to securing appropriate treatment is getting tested to determine if one is carrying the HIV virus. Being aware of one’s HIV status is also a necessary, and all too often sufficient, threshold fact making one vulnerable to prosecution under these laws. That, however, creates a powerful disincentive to getting tested for the virus. According to the President’s Advisory Council on AIDS, “Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.”

For additional background information, attached are (i) the President’s Advisory Council on HIV/AIDS (PACHA) Resolution on Ending Federal and State HIV-Specific Criminal Law, Prosecutions, and Civil Commitments (PDF), (ii) the U.S. Department of Justice, Civil Rights Division, Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors (PDF), and (iii) the Positive Justice Project¹ Guiding Principles for Eliminating Disease-Specific Criminal Laws (PDF).

Resolution

WHEREAS, there are more than 1.2 million people in the United States living with HIV, and an estimated 156,000 of those people are unaware of their infection, according to the Centers for Disease Control and Prevention (CDC); and

WHEREAS, the United States has led the world in HIV prosecutions; and

WHEREAS, the National Association of Criminal Defense Lawyers (NACDL) has long been concerned with the trend in the criminal law away from the moral anchor of adequate mens rea, or criminal intent, requirements; and

WHEREAS, the focus on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit the virus, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization; and

WHEREAS, punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV; and

WHEREAS, such laws constitute bad public health policy, erecting disincentives to getting tested for HIV when modern and effective antiretroviral therapy for HIV not only can extend significantly the lifespan of those with HIV, increasing the probability that a person with HIV remains healthy and never develops AIDS, but also can dramatically reduce the risk of transmission by those carrying the virus; and

WHEREAS, according to the CDC and the Civil Rights Division of the Department of Justice, “most of these laws do not account for actual scientifically-supported level of risk by type of activities engaged in or risk reduction measures undertaken” and “many of these state laws criminalize behaviors that the CDC regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures”; and

WHEREAS, HIV criminalization was bad criminal justice policy prior to the advent of modern and effective antiretroviral therapy, and remains so today; and

WHEREAS, NACDL’s core mission includes working to ensure justice and due process for persons accused of a crime as well as promoting the proper and fair administration of criminal justice; therefore

BE IT RESOLVED that NACDL hereby opposes all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual. Accordingly, NACDL supports the repeal of such criminal laws as fundamentally unfair and unjust. Recognizing that outright repeal can result in the abusive use of existing statutes, NACDL also supports modernization of these criminal laws to incorporate strong principles of intent and proportional punishment.

Footnote

¹ The Positive Justice Project is a national coalition of organizations and individuals working to end HIV criminalization in the United States. It is a project of The Center for HIV Law and Policy, a national legal and policy resource and strategy center working to reduce the impact of HIV on marginalized communities and to secure the human rights of people affected by HIV. Organizational members of the Positive Justice Project Steering Committee include the Center for HIV Law and Policy, the National Alliance of State & Territorial AIDS Directors, the National Black Leadership Commission on AIDS, and the National LGBTQ Task Force.

Justice Edwin Cameron: ‘Why HIV criminalisation is bad policy and why I’m proud that advocacy against it is being led by people living with HIV’

[This is the foreword to Advancing HIV Justice 2: Buiding momentum in global advocacy against HIV criminalisation, which will be published by the HIV Justice Network and GNP+ tomorrow, Tuesday May 10th.]

Since the beginning of the HIV epidemic, 35 long years ago, policymakers and politicians have been tempted to punish those of us with, and at risk of, HIV. Sometimes propelled by public opinion, sometimes themselves noxiously propelling public opinion, they have tried to find in punitive approaches a quick solution to the problem of HIV. One way has been to use HIV criminalisation – criminal laws against people living with HIV who don’t declare they have HIV, or to make potential or perceived exposure, or transmission that occurs when it is not deliberate (without “malice aforethought”), criminal offences.

Most of these laws are appallingly broad. And many of the prosecutions under them have been wickedly unjust. Sometimes scientific evidence about how HIV is transmitted, and how low the risk of transmitting the virus is, is ignored. And critical criminal legal and human rights principles are disregarded. These are enshrined in the International Guidelines on HIV and Human Rights. They are further developed by the UNAIDS guidance note, Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations. Important considerations, as these documents show, include foreseeability, intent, causality, proportionality, defence and proof.

The last 20 years have seen a massive shift in the management of HIV which is now a medically manageable disease. I know this myself: 19 years ago, when I was dying of AIDS, my life was given back to me when I was able to start taking antiretroviral medications. But despite the progress in HIV prevention, treatment and care, HIV continues to be treated exceptionally for one over-riding reason: stigma.

The enactment and enforcement of HIV-specific criminal laws – or even the threat of their enforcement – fuels the fires of stigma. It reinforces the idea that HIV is shameful, that it is a disgraceful contamination. And by reinforcing stigma, HIV criminalisation makes it more difficult for those at risk of HIV to access testing and prevention. It also makes it more difficult for those living with the virus to talk openly about it, and to be tested, treated and supported.

For those accused, gossiped about and maligned in the media, investigated, prosecuted and convicted, these laws can have catastrophic consequences. These include enforced disclosures, miscarriages of justice, and ruined lives.

HIV criminalisation is bad, bad policy. There is simply no evidence that it works. Instead, it sends out misleading and stigmatising messages. It undermines the remarkable scientific advances and proven public health strategies that open the path to vanquishing AIDS by 2030.

In 2008, on the final day of the International AIDS Conference in Mexico City, I called for a sustained and vocal campaign against HIV criminalisation. Along with many other activists, I hoped that the conference would result in a major international pushback against misguided criminal laws and prosecutions.

The Advancing HIV Justice 2 report shows how far we have come. It documents how the movement against these laws and prosecutions – burgeoning just a decade ago – is gaining strength. It is achieving some heartening outcomes. Laws have been repealed, modernised or struck down across the globe – from Australia to the United States, Kenya to Switzerland.

For someone like me, who has been living with HIV for over 30 years, it is especially fitting to note that much of the necessary advocacy has been undertaken by civil society led by individuals and networks of people living with HIV.

Advancing HIV Justice 2 highlights many of these courageous and pragmatic ventures by civil society. Not only have they monitored the cruelty of criminal law enforcement, acting as watchdogs, they have also played a key role in securing good sense where it has prevailed in the epidemic. This publication provides hope that lawmakers intending to enact laws propelled by populism and irrational fears can be stopped. Our hope is that outdated laws and rulings can be dispensed with altogether.

Yet this report also reminds us of the complexity of our struggle. Our ultimate goal – to end HIV criminalisation using reason and science – seems clear. But the pathways to attaining that goal are not always straightforward. We must be steadfast. We must be pragmatic. Our response to those who unjustly criminalise us must be evidence-rich and policy-sound. And we can draw strength from history. Other battles appeared “unwinnable” and quixotic. Think of slavery, racism, homophobia, women’s rights. Yet in each case justice and rationality have gained the edge.

That, we hope and believe, will be so, too, with laws targeting people with HIV for prosecution.

Edwin Cameron, Constitutional Court of South Africa, May 2016.

Australia: Southern Australia new legislation to soon enforce mandatory blood testing of offenders for spitting at, or biting police officers

MORE than 100 police officers are being spat at each year, exposing them to infectious diseases and raising the concerns of their union.

Police figures show 111 officers were spat at in 2013 and that total has remained steady each year since, although they refused to release new figures.

South Australian Police Association president Mark Carroll said he hoped new legislation, which is expected to soon become law, enforcing mandatory blood testing of offenders who assault police would protect his members.

“When, in the course of duty, officers are spat on, bitten or otherwise assaulted in a way involving an exchange of bodily fluids, it’s essential that these officers have access to blood samples from the assailant that can be tested,” he said.

The comments come after the sentencing of Brandon William Peter Humes who spat on an officer during an arrest him and told him ‘I don’t give a f — k … I have HIV AIDS and now you’ve got it too’.

In sentencing Humes, 27, this month District Court Judge Rauf Soulio said the officer had to restrain Humes which left him unable to immediately “decontaminate himself”.

“Your comments about HIV caused him great distress,” Judge Soulio said.

“He felt unable to hold his infant daughter, who was born prematurely, for fear of passing on a communicable disease.

“He had to deal with the fear of waiting for blood results, which were, fortunately, negative.”

Humes was sentenced to four years and six months jail with a non-parole period of two years for armed robbery and the spitting offence in June last year.

Also, Senior Sergeant Alison Coad contracted oral herpes after being spat on by a criminal.

SAPOL would not comment on the medical history of officers but said “this type of incident (spitting) is always of concern.”

“This type of behaviour is totally inappropriate and can result in offenders facing very serious charges,” a spokeswoman said.

The WA Police Union has recently requested officers be equipped with spit hoods because of a spike in incidents there.

Orginally published in The Advertiser

US: Teleconference on HIV Criminal Laws on Thursday – May 5, 2016 from 10:30 to 11:30 a.m. ET

CHLP, The American Bar Association AIDS Coordinating Committee and the National Association of Criminal Defense Lawyers present a teleconference on HIV Criminal Laws on Thursday, May 5 from 10:30 to 11:30 am ET on HIV Criminal Law for criminal defense lawyers, service providers in the legal, medical and social work communities and people living with HIV.

Sponsoring organizations: The ABA AIDS Coordinating Committee, The Center for HIV Law and Policy, and The National Association of Criminal Defense Lawyers.

Audience: Criminal defense lawyers, service providers in the legal, medical and social work communities and people living with HIV

Format: Interactive–speaker presentations followed by audience Q and A

Date and Time: May 5, 2016 from 10:30 to 11:30 a.m. ET

How to Participate: There is NO COST to participate. The morning of the event simply dial the Conference Call number 1 (877) 317-0419 and enter Access Code 2244415. To be sent the documents that will be referenced during the Teleconference please send your e-mail address toidominguez@nacdl.org or anichol@hivlawandpolicy.org

Summary: Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more. Learn from experts about these laws and how to defend against them.

Opening Remarks: Norman L. Reimer, Executive Director of the National Association of Criminal Defense Lawyers (NACDL).

Moderator: Richard A. Wilson, Chair ABA AIDS Coordinating Committee.

Presentation One: Department of Justice Civil Rights Division’s Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors by Allison Nichol, CHLP Co-Executive Director.

In May 2013 the United States Department of Justice, Civil Rights Division (CRD) issued guidance on how to reform HIV-specific criminal laws to bring them into alignment with current science, from actual routes and risks of transmission to the transformation of HIV treatment and prevention with the development of highly effective antiretroviral therapy (ART).

Presentation Two

Defending Against HIV State Law Prosecutions by Mayo Schreiber, CHLP Deputy Director.

Two recent cases in which CHLP participated, one in Missouri and one in Ohio, will be discussed, along with the HIV criminal statutes in those states. These cases and statutes are illustrative of the fundamental injustice of the statutes as drafted and the punishments provided for violating them. Defense trial and sentencing strategy will be analyzed, including identification of experts and supporting resources, and current thinking on legal challenges to these laws.

A Q&A Session Will Follow.

For more info, go to: http://www.hivlawandpolicy.org/fine-print-blog-news/when-sex-a-crime-and-spit-a-dangerous-weapon-a-teleconference-hiv-criminal-laws

Australia: Analysis of the limitations of scientific evidence to prove timing and direction of alleged HIV transmission in three criminal trials

This article by Paul Kidd in the March 2016 issue of HIV Australia examines the use of HIV phylogenetic analysis in three Australian criminal trials. It argues that courts in Australia appear to accept forensic evidence uncritically. As the forensic methodology used in phylogenetic analysis is inherently limited, it argues there is risk of miscarriage of justice where this type of evidence forms a substantial part of the prosecution case.

Read the full article at: https://www.afao.org.au/library/hiv-australia/volume-14/vol-14-no-1/phylogenetic-analysis-as-expert-evidence-in-hiv-transmission-prosecutions