Google translation, for article in Spanish, scroll down.
Among the reasons for the decision, the high court stated that the rule “stigmatized” a population.
Three reasons led the Constitutional Court on Wednesday to overturn Article 411 of Law 599 of 2000, which penalized the spread of the Acquired Immunodeficiency Virus, HIV, and of Hepatitis B.
A first reason was that this rule was not a necessary and proportional measure. Second, it stigmatized a population. And the third is that there is another rule in the Penal Code that already typifies the spread of epidemics.
The Court’s decision accepted several of the plaintiff’s arguments. According to the plaintiff, the rule violated the rights to equality and restricted the free development of personality, in particular sexual freedom.
The norm established that there would be a prison term of 6 to 12 years for those who, knowing they are HIV positive or sick with hepatitis B, “carry out practices by means of which they can contaminate another person, or donate blood, semen, organs or, in general, anatomical components”.
According to the lawsuit, this penalized the fact that a person living with these diseases had sex, and made it a crime regardless of whether that person took the preventive measures that make the transmission of diseases unlikely, such as antiretroviral treatments and others.
The plaintiff argued that, although the purpose of this measure was to protect public health, this did not justify prohibiting a population group from freely expressing its sexuality, and stressed that there would be no effect when there were consensual relationships in which measures were taken to prevent contagion.
Regarding the violation of equality, the lawsuit held that the article only referred to and penalized people with HIV or hepatitis B, and not others with potentially contagious and delicate diseases.
Other views
As part of the debate on this law, the Court received 15 statements from different organizations, ministries, universities, and even from the Constitutional Court of South Africa – against it – to take into consideration. And there were almost as many arguments in favour as against.
The Colombian League for the Fight against AIDS supported the lawsuit because it considered that the law did violate rights, added that laws that penalize exposure to HIV leave the entire burden of prevention on people living with it and said that the real challenges were more education and better access to medical testing and counseling services.
The statement sent by the Ministry of Justice gave reason to the plaintiff that the rule was discriminatory because it was addressed only to people with HIV – who have also been recognized as subjects of special constitutional protection – or hepatitis B. It also argued that there was no justification for the rule being for people with these two diseases and not for others who are aware of having different risks of infectious-contagious diseases.
However, faced with the restriction of sexual freedom, the Ministry of Justice considered: the rule “does not violate the right to the free development of the personality, but is limited to establishing the penal consequences that its abusive and harmful exercise entails with respect to the rights of others and the community”.
The Ministry of Health indicated, on the contrary, that the article did not violate either the right to equality or the free development of the personality and asked to leave it as it was.
The Attorney General’s Office agreed with the plaintiff that the rule punished the fact of having sex even when there was no transmission of the disease, which, says the Public Prosecutor’s Office, is not true. For the Attorney General’s Office, the rule was clear that in order for the crime to be configured there must be an intention to cause harm by engaging in practices that could end in contagion. The Public Prosecutor’s Office asked the Court to declare itself inhibited.
Corte tumba artículo que penalizaba la propagación del VIH
Entre las razones, el alto tribunal dijo que la norma “estigmatizaba” a una población.
Una primera razón es que esta norma no era una medida necesaria y proporcional. La segunda, estigmatizaba a una población. Y la tercera es que hay otra norma en el Código Penal que tipifica ya la propagación de epidemias.
La decisión de la Corte acoge varios argumentos del demandante. Según este, la norma vulneraba los derechos a la igualdad y restringía el libre desarrollo de la personalidad, en particular, la libertad sexual.
La norma establecía que habría prisión de 6 a 12 años para quien, sabiéndose portador del VIH o enfermo de hepatitis B, “realice prácticas mediante las cuales puedan contaminar a otra persona, o done sangre, semen, órganos o en general componentes anatómicos”.
De acuerdo con la demanda, esto penalizaba el hecho de que una persona que viviera con estas enfermedades tuviera sexo, y lo convertía en delito sin importar si se esa persona tomaba las medidas preventivas que hacen improbable la transmisión de enfermedades, como tratamientos antirretrovirales y otros.
El demandante sostenía que, aunque el fin de esta medida era proteger la salud pública, esto no justificaba prohibirle a un grupo poblacional expresar libremente su sexualidad, y resaltaba que no habría afectación cuando se tuvieran relaciones consensuadas en las que se tomaran medidas para prevenir contagios.
Sobre la vulneración a la igualdad, la demanda sostenía que el artículo solo se refería y penalizaba a personas con VIH o hepatitis B, y no a otras con enfermedades también potencialmente contagiosas y delicadas.
Otras voces
Como parte del debate sobre esta norma, la Corte recibió 15 conceptos de diferentes organizaciones, ministerios, universidades, e incluso de la Corte Constitucional de Sudáfrica- en contra-, para alimentar sus consideraciones. Y hubo casi tantos argumentos a favor como en contra.
La Liga Colombiana de Lucha contra el Sida apoyó la demanda pues consideró que con la norma sí se vulneraban los derechos, agregó que leyes que penalizan la exposición al VIH dejan toda la carga de la prevención a las personas que viven con él y dijo que los verdaderos desafíos son más educación y mejor acceso a servicios de pruebas médicas y consejería.
El concepto enviado por el Ministerio de Justicia le dio la razón al demandante en que la norma es discriminatoria pues estaba dirigida únicamente a personas con VIH –que además han sido reconocidas como sujetos de especial protección constitucional– o hepatitis B. También argumentó que no se advertía justificación para que la norma fuera para personas con esas dos enfermedades y no para otras que conscientes de tener enfermedades infectocontagiosas riesgosas distintas.
Sin embargo, frente a la restricción a la libertad sexual, la cartera de Justicia consideró: la norma “no vulnera el derecho al libre desarrollo de la personalidad, sino que se limita a establecer las consecuencias penales que acarrea su ejercicio abusivo y lesivo frente a los derechos de las demás personas y la comunidad”.
El Ministerio de Salud indicó, al contrario, que la norma demandada no vulneraba ni el derecho a la igualdad ni el libre desarrollo de la personalidad y pidió dejarla como estaba.
La Procuraduría coincidió con el demandante en que la norma castigaba el hecho de tener sexo aun cuando no exista transmisión de la enfermedad, lo cual, dice el Ministerio Público, no es cierto. Para la Procuraduría, la norma era clara en que para que se configurara el delito debía existir una intención de causar daño realizando prácticas que podían terminar en contagio. El Ministerio Público pidió a la Corte declararse inhibida.
France: Highest Court confirms that people living with HIV with an undetectable viral load can never be prosecuted as the risk of transmission is nul
Source TETU, Published 20/03/2019 – Google translation, for article in French please scroll down.
Can a person living with HIV be prosecuted if she is under treatment? The Court of Cassation (French Highest Court) delivers a landmark decision.
In a decision handed down on 5 March, the Court of Cassation ruled that it was impossible to prosecute an HIV-positive man on treatment who had sex without a condom and without informing his partner of his HIV status.
That’s a first. In a decision handed down on 5 March, the Court of Cassation recognised the preventive nature of HIV treatment. Thus, any person whose viral load is undetectable, who has sex without a condom with another person without the latter being aware of the HIV status of his or her partner, cannot be prosecuted.
In this case, a woman who had sex with a man who was HIV-positive and undergoing treatment sued the man on the grounds that he had not previously informed her of his HIV status. The partner was not infected. However, the man was prosecuted on the grounds of “administration of a harmful substance”, i.e. alleged exposure to the virus.
Non-harmful bodily fluids
The investigating judge did not give rise to prosecution. A decision from which the civil party has appealed. But the woman was once again dismissed. According to the Court of Appeal, it has been proven that the “HIV viral load” was “constantly undetectable since 3 September 2001”. The man was “strictly and permanently compliant with the treatment, so that his HIV status was only potential but not current”.
And the judges of the Court of Appeal ruled: “The carrier’s bodily fluids cannot be considered harmful on the date of the alleged acts”.
A significant reminder from the judges, who stated that it takes “a detectable viral load in an infected person for him/her to infect any partner”.
A purely mathematical margin of error
Moreover, the judges of the Court of Appeal acknowledged that there was indeed a margin of error, but that it was purely mathematical. Thus, they conceive of the idea of the “non-zero risk” of HIV transmission by a person undergoing treatment. A risk they call “very small” since it is about one in 10,000. And according to them, this margin of error does not make it possible to condemn the carrier of the virus.
The civil party has appealed to the Supreme Court. The High Court dismissed the appeal, aligning itself with the judges of first instance.
Peut-on poursuivre une personne séropositive sous traitement ? La Cour de cassation rend un arrêt historique
Dans un arrêt rendu le 5 mars dernier, la Cour de cassation a affirmé qu’il était impossible de poursuivre un homme séropositif sous traitement, ayant eu des relations sexuelles sans préservatif et sans informer sa partenaire de son statut sérologique.
C’est une première. La Cour de cassation a reconnu, dans un arrêt rendu le 5 mars dernier, le caractère préventif du traitement contre le VIH. Ainsi, ne saurait être poursuivie toute personne dont la charge virale est indétectable, qui aurait des relations sexuelles sans préservatif avec une autre personne sans que celle-ci ne soit au courant du statut sérologique de sa/son partenaire.
Dans cette affaire, une femme ayant eu des relations sexuelles avec un homme, porteur du VIH et sous traitement, a engagé des poursuites contre ce dernier au motif qu’il ne l’avait pas prévenue au préalable de son statut sérologique. Sa partenaire n’a pas été contaminée. Pourtant, l’homme était poursuivi au motif « d’administration d’une substance nuisible », c’est-à-dire à une prétendue exposition au virus.
Des fluides corporels non nuisibles
Le juge d’instruction n’a pas donné lieu aux poursuites. Une décision de laquelle la partie civile a fait appel. Mais la femme s’est fait une nouvelle fois débouter. Selon la Cour d’appel, il a été prouvé que « la charge virale de VIH » était « constamment indétectable depuis le 3 septembre 2001 ». L’homme a fait « compliance stricte et permanente au traitement, de sorte que la séropositivité n’était plus que potentielle mais non actuelle ».
Et les juges de la Cour d’appel de statuer : « Les fluides corporels du porteur ne sauraient être tenus pour nuisibles à la date des agissements qui lui sont reprochés ».
Un rappel non négligeable des juges, qui affirment qu’il faut « une charge virale détectable chez une personne infectée pour qu’elle puisse contaminer quelque partenaire ».
Une marge d’erreur purement mathématique
Par ailleurs, les juges de la Cour d’appel ont reconnu qu’il existait bel et bien une marge d’erreur, mais qu’elle était purement mathématique. Ainsi, ils conçoivent l’idée du « risque non nul » de la transmission du VIH par une personne sous traitement. Un risque qu’ils qualifient d’ »infime » puisqu’il est d’environ un sur 10.000. Et selon eux, cette marge d’erreur ne permet pas de condamner le porteur du virus.
La partie civile s’est pourvue en cassation. La haute juridiction a rejeté le pourvoi, s’alignant sur les juges de première instance.
Mexico: Supreme Court finds Veracruz law criminalising ‘wilful transmission’ of HIV and STIs to be unconstitutional
The full ruling is not yet available, but according to a news story published yesterday in 24 Horas.
…it was pointed out that the criminal offense is “highly inaccurate” because it does not establish what or what is a serious illness, besides it is not possible to verify the fraud in the transmission [and] that although the measure pursued the legitimate aim of protecting the right to health, especially for women and girls, the measure did not exceed the analysis of need because it was not ideal and optimal for the protection of that purpose, especially as [Veracruz] already criminalised the ‘willful putting at risk of contagion of serious illnesses’…
The Minister President of the Court, Luis María Aguilar Morales, took up the recommendations of the Joint United Nations Program on HIV / AIDS and the Oslo Declaration on HIV Criminalisation, regarding the criminalization of HIV, and argued that this article left to the will of the investigating authority to decide which diseases will be considered as serious and which will not, going against the principle of legality, which implies that the crimes cannot be indeterminate or ambiguous.
In this case, the President said, the article did not establish whether STIs are only those considered serious or any, regardless of their severity. In turn, the justices determined that the resolution has a retroactive effect, that is, that those persons tried under the offense established by this article, the resolutions are invalidated.
Background
On August 4, 2015, the Congress of the State of Veracruz approved an amendment to Article 158 of the Criminal Code in order to add the term Sexually Transmitted Infections, which included HIV and HPV.
It provided for a penalty ranging from 6 months to 5 years in prison and a fine of up to 50 days of salary for anyone who “willfully” infects another person with a disease via sexual transmission.
The amendment, proposed by the deputy Mónica Robles Barajas of the Green Ecologist Party of Mexico, said the legislation was aimed at protecting women who can be infected by their husbands. “It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.
On February 16, 2016, the National Human Rights Commission responded to the request of the Multisectoral Group on HIV / AIDS and STIs of the state of Veracruz and other civil society organizations, and filed an action of unconstitutionality against the reform in the Supreme Court of Justice of the Nation, which it said does not fulfill its objective of preventing the transmission of sexual infections to women and girls, but rather creates discrimination of people living with HIV and other STIs.
In October 2016, following a press conference at the National Commission on Human Rights (pictured above) that generated a great deal of media coverage, including a TV report, HIV JUSTICE WORLDWIDE delivered a letter to the Mexican Supreme Court highlighting that a law such as that of Veracruz does not protect women against HIV but rather increases their risk and places women living with HIV, especially those in positions vulnerable and abusive relationships, at disproportionate risk of both proseuction and violence.
We applaud the declaration of the Supreme Court of Justice of the Nation, which gives us the reason for the unconstitutionality request, shared with the National Commission of Human Rights; For this reason, we suggest to the deputies of the Congresses of the State that before legislating, they should be trained in the subject and that they do not forget that their obligation is to defend Human Rights, not to violate them.
Finally, the Mexican Network against the Criminalization of HIV recognizes that there are still many ways to go and many battles to fight, but we can not stop celebrating this important achievement.
Edwin Bernard (HIV JUSTICE WORLDWIDE) and Patricia Ponce (Grupo Multisectorial Veracruz) presenting the letter to Supreme Court of the Nation, Mexico City.
Read the English text of the HIV JUSTICE WORLWIDE amicus letter below.
HIV JUSTICE WORLDWIDE
This is a letter of support from HIV JUSTICE WORLDWIDE[1] to Grupo Multi VIH de Veracruz / National Commission of Human Rightswho are challenging Article 158 of Penal Code of the Free and Independent State of Veracruz that criminalises ‘intentional’ exposure to sexually transmitted infections or other serious diseases, on the grounds that this law violates a number of fundamental rights: equality before the law; personal freedom; and non-discrimination.
As a coalition of organisations working to end the overly broad use of criminal laws against people living with HIV, we respectfully share Grupo Multi VIH de Veracruz’s concerns around Article 158 which potentially stigmatises people with sexually transmitted diseases and criminalises ‘intentional’ exposure to sexually transmitted infections (potentially including HIV) or other serious diseases.
All legal and policy responses to HIV (and other STIs) should be based on the best available evidence, the objectives of HIV prevention, care, treatment and support, and respect for human rights. There is no evidence that criminalising HIV ‘exposure’ has HIV prevention benefits. However, there are serious concerns that the trend towards criminalisation is causing considerable harm.
Numerous human rights and public health concerns associated with the criminalisation of HIV non-disclosure and/or potential or perceived exposure and/or transmission have led the Joint United Nations Programme on HIV/ AIDS (UNAIDS) and the United Nations Development Programme (UNDP),[2] the UN Special Rapporteur on the right to health,[3] the Global Commission on HIV and the Law[4] and the the World Health Organization[5], to urge governments to limit the use of the criminal law to extremely rare cases of intentional transmission of HIV (i.e., where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it). They have also recommended that prosecutions [for intentional transmission] “be pursued with care and require a high standard of evidence and proof.” [6]
In 2013, UNAIDS produced a comprehensive Guidance Note to assist lawmakers understand critical legal, scientific and medical issues relating to the use of the law in this way.[7] In particular, UNAIDS guidance stipulates that:
“[I]ntent to transmit HIV cannot be presumed or solely derived from knowledge of positive HIV status and/or non-disclosure of that status.
Intent to transmit HIV cannot be presumed or solely derived from engaging in unprotected sex, having a baby without taking steps to prevent mother-to-child transmission of HIV, or by sharing drug injection equipment.
Proof of intent to transmit HIV in the context of HIV non-disclosure, exposure or transmission should at least involve (i) knowledge of positive HIV status, (ii) deliberate action that poses a significant risk of transmission, and (iii) proof that the action is done for the purpose of infecting someone else.
Active deception regarding positive HIV-status can be considered an element in establishing intent to transmit HIV, but it should not be dispositive on the issue. The context and circumstances in which the alleged deception occurred—including the mental state of the person living with HIV and the reasons for the alleged deception— should be taken into consideration when determining whether intent to transmit HIV has been proven to the required criminal law standard.”
Moreover, where criminal liability is extended to cases that do not involve actual transmission of HIV (contrary to the position urged by UNAIDS and other experts), such liability should, at the very bare minimum, be limited to acts involving a “significant risk” of HIV transmission. In particular, UNAIDS guidance contains explicit recommendations against prosecutions in cases where a condom was used, where other forms of safer sex were practiced (including oral sex and non-penetrative sex), or where the person living with HIV was on effective HIV treatment or had a low viral load. Being under treatment or using other forms of protections not only show an absence of malicious intent but also dramatically reduces the risks of transmission to a level close to zero. Indeed, a person under effective antiretroviral therapy poses – at most – a negligible risk of transmission[8] and is therefore no different from someone who is HIV-negative.
Moreover, there is growing body of evidence[9] that such laws that actually or effective criminalise HIV non-disclosure, potential or perceived exposure, or transmission, negatively impact the human rights of people living with HIV due to:
selective and/or arbitrary investigations/prosecutions that has a disproportionate impact on racial and sexual minorities, and on women.
confusion and fear over obligations under the law;
the use of threats of allegations triggering prosecution as a means of abuse or retaliation against a current or former partner;
improper and insensitive police investigations that can result in inappropriate disclosure, leading to high levels of distress and in some instances, to loss of employment and housing, social ostracism, deportation (and hence also possibly loss of access to adequate medical care in some instances) for migrants living with HIV in some cases;
limited access to justice, including as a result of inadequately informed and competent legal representation;
sentencing and penalties that are often vastly disproportionate to any potential or realised harm, including lengthy terms of imprisonment, lifetime or years-long designation as a sex offender (with all the negative consequences for employment, housing, social stigma, etc.);
stigmatising media reporting, including names, addresses and photographs of people with HIV, including those not yet found guilty of any crime but merely subject to allegations.
In addition, there is no evidence that criminalising HIV (or other sexually transmitted infections) help protect women and girls from infections.
Women are often the first in a relationship to know their HIV status due to routine HIV testing during pregnancy, and are less likely to be able to safely disclose their HIV-positive status to their partner as a result of inequality in power relations, economic dependency, and high levels of gender-based violence within relationships.[10]
Such a law does nothing to protect women from the coercion or violence that effectively increases the risk of HIV transmission. On the contrary, such laws place women living with HIV, especially those in vulnerable positions and abusive relationships, at increased risks of both prosecution and violence.
Some evidence suggests that fear of prosecution may deter people, especially those from communities highly vulnerable to acquiring HIV, from getting tested and knowing their status, because many laws only apply for those who are aware of their positive HIV status.[11] HIV criminalisation can also deter access to care and treatment, undermining counselling and the relationship between people living with HIV and healthcare professionals because medical records can be used as evidence in court.[12]
Finally, there is evidence[13] of an additional negative public health impact of such laws in terms of:
increasing HIV-related stigma, which has an adverse effect on a person’s willingness to learn about, or discuss, HIV; and
undermining the importance of personal knowledge and responsibility (correlative to degree of sexual autonomy) as a key component of an HIV prevention package, when instead prevention of HIV within a consensual sexual relationship is – and should be perceived as – a shared responsibility.
We hope that the Mexico Supreme Court of Justice takes our concerns and all of this evidence into account when considering the Constitutional Challenge.
Yours faithfully,
Edwin J Bernard, Global Co-ordinator, HIV Justice Network
on behalf of all HIV JUSTICE WORLDWIDE partners: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO).
[1] HIV JUSTICE WORLDWIDE is an initiative made up of global, regional, and national civil society organisations working together to end overly broad HIV criminalisation. The founding partners are: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO). The initiative is also supported by Amnesty International, the International HIV/AIDS Alliance, UNAIDS and UNDP.
[2] UNAIDS. Policy Brief: Criminalisation of HIV Transmission, August 2008; UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.
[3] Anand Grover. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, June 2010.
[4] Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.
[5] WHO. Sexual health, human rights and the law. June 2015.
[6] Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.
[7] UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.
[8] A.J. Rodger et al., “Sexual activity without condoms and risk of HIV transmission in serodifferent couples when the HIV-positive partner is using suppressive antiretroviral therapy,” JAMA 316, 2 (12 July 2016): pp. 171–181.
[10] Athena Network. 10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women. 2009.
[11] O’Byrne P et al. HIV criminal prosecutions and public health: an examination of the empirical research. Med Humanities 2013;39:85-90 doi:10.1136/medhum-2013-010366
N.S. appeal will give guidance for future HIV non-disclosure cases, lawyers say
Tuesday, February 27, 2018 @ 9:25 AM | By Terry Davidson
The acquittal of an HIV-positive man in an East Coast non-disclosure case will further guide Canada’s legal community in its response to new science around risk of transmission, experts say.
The Nova Scotia Court of Appeal decision in R. v. Thompson 2018 NSCA 13, rendered Feb. 15, involves Claude Thompson, an Antigonish man who was charged with failing in 2011 to tell two women he was HIV-positive before having consensual sex with them.
During Thompson’s 2016 trial, Justice Suzanne Hood found that Thompson had been taking antiviral drug therapy and used a condom with the first complainant but not the second. She also leaned on expert testimony that there was negligible risk of transmission in this case.
As a result, Justice Hood acquitted Thompson of two counts of aggravated sexual assault, but deemed him guilty of the “lesser and included offences of sexual assault causing bodily harm” after finding the two women suffered psychologically from the initial uncertainty of not knowing if they had been infected. (Both subsequently tested negative.)
This, she ruled, vitiated their consent.
But Appeal Court Justice Duncan Beveridge threw out Thompson’s bodily harm convictions, ruling that unless there was a realistic possibility of transmission, consent could not be vitiated simply by psychological harm.
“The sole issue in this case is whether psychological harm said to have been caused by non-disclosure of HIV status vitiates consent to sexual activity.” The short answer is no, it does not,” stated Justice Beveridge, with Justices Linda Lee Oland and Joel Fichaud in agreement. “Failure by a sexual partner to disclose that he or she has a sexually transmitted disease is morally reprehensible, but it is not usually a crime.”
Justice Beveridge went on to talk of stress and upset being “irrelevant” in the “eyes of the law.”
“Emotional stress or upset, even if they could legitimately amount to bodily harm within the meaning of the Criminal Code, are, in the eyes of the law, irrelevant.”
In December, the federal government released the Criminal Justice System’s Response to Non-Disclosure of HIV, a research paper warning of the over-criminalization of infected people who don’t disclose their condition but pose a “negligible” risk to non-infected partners. It also lays out various sexual scenarios which would involve a low — or even nonexistent — possibility of transmission, even if a condom is not used.
Criminal law, it stated, should not apply to those who do not disclose but have maintained a suppressed viral load, are taking antiretroviral treatment, use condoms or engage only in oral sex.
Following the paper’s release, Ontario’s Ministry of the Attorney General announced that the province’s Crowns would be told to limit non-disclosure prosecutions, particularly for those on antiretroviral therapy and with “a suppressed viral load.”
Defence lawyers urged Crowns to re-examine both current non-disclosure cases and past convictions in light of evolving medical science.
The release of the paper was the next chapter in the changing legal landscape when it comes to non-disclosure cases.
Before it came Mabior.
In 2012, the Supreme Court of Canada ruled in R. v. Mabior 2012 SCC 47 that an infected person was not legally required to disclose their HIV-positive status if they carried a low viral load and used a condom. However, the SCC left room for some tweaking should laws need to adapt to changing science.
Toronto lawyer Cynthia Fromstein said the adherence to medical science in the Thompson case will serve to further guide Canada’s legal community in non-disclosure cases.
“It’s important because it’s a court of appeal decision that is making it very clear in terms of the reliance on medical science [being] the directive as to whether someone poses a realistic risk of transmission,” said Fromstein. “That’s important because we can now use that. As a defence counsel, I can use that on cases where they are still prosecuting. If there is a prosecution for oral sex, or a prosecution where there is a condom used, now there is some law that is supportive of the notion of what it takes … to find someone guilty, and perhaps it will also influence (provincial attorney generals) in not prosecuting, the fact that there is a legal directive, a court of appeal decision.”
Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, said Justice Hood’s psychological harm conviction of Thompson was of some concern.
“For years we have seen many different attempts by some actors in the justice system to expand the criminal law against people living with HIV,” said Kazatchkine in an e-mail. “Such attempts have included pushing the psychological harm argument. While the trial judge’s verdict in Thompson … was concerning (and unjust), we knew there was no legal basis for such argument. … The interpretation of the legal text of a ‘realistic possibility of transmission’ has created uncertainty, but the law around HIV non-disclosure has always been clear: there can be no conviction for non-disclosure in absence of actual transmission or a significant risk of transmission.”
The HIV Criminalisation Defence Case Compendium was developed to accompany a four-day training for lawyers on HIV and TB criminalisation, due to take place in Johannesburg, South Africa, later this month.
The Compendium aims to provide lawyers with a tool to successfully defend people living with HIV who are being prosecuted for alleged HIV non-disclosure, exposure, or transmission. It catalogues and analyses criminal cases from across the world where “strong defence arguments have resulted in an acquittal or reduced penalty”.
To find pertinent cases quickly and effectively, the Compendium is split into three parts:
The first section outlines the key issues raised in the judgement, such as proof of intent, and classifies the cases accordingly in an easy to navigate table format.
The second section, organised by country, catalogues the categories of argument raised by the defence.
The third section summarises the facts of each case and the Court decisions, highlighting the key points.
Ohio Supreme Court Rules to Uphold Outdated and Unscientific HIV Criminalization Policies
COLUMBUS, OH—Today the Ohio Supreme Court ruled to continue the criminalization of individuals living with HIV. The ACLU of Ohio, The Center for HIV Law and Policy (“CHLP”), and nine other LGBTQ, HIV, medical and legal defense organizations, with assistance from the law firm Gibbons, P.C. and attorney Jeff Gamso, were amici in State of Ohio v. Batista, a case challenging Ohio Revised Code 2903.11(B)(1). Under this law, it is felonious assault – a second-degree felony – for a person who knows they are HIV positive to have sex without first disclosing their status to their sex partner.
“It makes no sense – medically or legally – to single out HIV for criminalization,” said Elizabeth Bonham, staff attorney at the ACLU of Ohio. “This law allows the state of Ohio to enter someone’s most intimate space, and control their bodies and their self-expression, based on who they are. What’s more, evidence shows us that laws like these do more damage to our communities—they don’t protect anyone.”
Laws that criminalize HIV are outdated, and ignore the scientific advances that have transformed the disease and those who are diagnosed. “We cannot allow the fears and confusion of the past to guide our current policy on HIV,” added Bonham. Ohio also has other HIV criminalization laws that attach harsher criminal penalties to some acts that carry no risk of transmitting HIV.
“This law, like all those that criminalize HIV, does not consider the actual risks of HIV transmission, how transmission occurs, or whether a person intends to transmit the virus,” said Mayo Schreiber, Deputy Director of the CHLP. Schreiber further noted “These laws do nothing to reduce HIV transmission. They neither foster behavior that mitigates the risk of transmission nor promote healthy sexual practices.”
“This decision by the Ohio Supreme Court furthers a stigma that should be relegated to history books. We will continue to work with people living with HIV and AIDS to end laws like these,” concluded Bonham.
US: Full text of Florida Supreme Court ruling on "sexual intercourse" and its HIV disclosure law
The term “sexual intercourse” in section 384.24(2) encompasses conduct beyond heterosexual penile-vaginal intercourse.We therefore approve the Third District’s decision in
Debaun and disapprove the Second District’s decision in L.A.P. to the extent that it conflicts with this opinion.
Michael L. Johnson now sits in prison under a law that hurts many and helps no one. With your help, he could be free in a matter of months.
Everyone ought to have the right to a fair trial. A toxic mix of racial bias, homophobia and income inequality made that impossible for Michael L. Johnson. With your help, he may have another chance at justice.
In the fall of 2013, Michael Johnson was living his dream. He was a student-athlete at Lindenwood University where he was a respected collegiate wrestler. He aspired to one day compete in the Olympics. But Michael’s dreams were shattered in October 2013, when he was arrested for being a sexually active black gay man living with HIV. In May 2015, under the unfair and unjust HIV criminalization laws in the state of Missouri, Michael was found guilty and sentenced to 30 ½ years.
Remarkably, in December 2016, the Missouri Court of Appeals, Eastern District, reversed his conviction based on the prosecution’s failure to turn over important evidence in a timely fashion. But Michael is not out of the woods yet. In order for Michael to have a chance to get his life back, he needs the best legal counsel available at the new trial that will take place sometime soon. This is where your help Is needed.
Michael urgently needs an attorney that can defend him and give him a shot at true justice. In order to give Michael that chance, we need to raise $20,000 in 20 days. This money will be used to hire a private attorney that has the experience, background, and passion to help Michael fight the HIV criminalization laws in Missouri.
A new trial date has not yet been set – but time is of the essence! Michael needs experienced counsel immediately.
Any amount of money will help – if we all pull together, we can reach this goal and give Michael Johnson a new lease on life. Please share his story and help support his quest for freedom.
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We are advocates, organizers, and community members committed to working toward the freedom of Michael L. Johnson, a young black gay student, respected college athlete, and aspiring olympic wrestler before he was arrested under Missouri’s unjust HIV criminalization law.
Malawi: Zomba High Court in Malawi delivers landmark ruling on the application of criminal law to cases of HIV transmission and exposure
Zomba–On 19 January 2017, the Zomba High Court in Malawi delivered a landmark ruling on the application of criminal law to cases of HIV transmission and exposure.
The appellant is a woman living with HIV who was convicted of negligently and recklessly doing an act which is “likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code for accidentally breastfeeding another person’s child. She was unrepresented at her trial and sentenced to 9 months’ imprisonment.
Before the High Court, she appealed her conviction and sentence and challenged the constitutionality of section 192 of the Penal Code for being vague and overbroad. She raised expert evidence to show the “infinitesimally small risk” of HIV transmission by women on antiretroviral treatment through breastfeeding. The State agreed that the appellant’s conviction and sentence should be overturned and set aside.
At the hearing on 2 December 2016, the Court, per Ntaba J, granted an order that the appellant’s identity be concealed to protect her confidentiality and that of the children concerned. On 19 January 2017, the High Court acquitted the appellant and ordered her immediate release. It held that the proceedings in the trial court were irregular and “blatantly bias” against the appellant, compromising her right to a fair trial.The Court held that the appellant did not have the requisite knowledge or belief that breastfeeding the complainant’s child was likely to spread HIV and cautioned against the misapplication of criminal law in cases of HIV transmission and exposure. The Court recommended the constitutional challenge be filed for separate determination considering the national interest in the issue.
Ms Clara Banya of ICW, Malawi said, “Breastfeeding is not a crime. Breastfeeding is recommended for women living with HIV who are on antiretroviral treatment by the World Health Organisation and in terms of the Ministry of Health’s Guidelines.”
“This case highlights ongoing discrimination against people living with HIV and illustrates the struggles faced by women living with HIV. There is need for communities to understand facts about HIV transmission and exposure,” said Ms Edna Tembo, the Executive Director of the Coalition of Women Living with HIV/AIDS (COWLHA).
“This case sets important precedent regionally on the misapplication of the criminal law in cases of HIV exposure, transmission and non-disclosure. The Court cautioned against the trend of crafting specific offences to deal with HIV, and affirmed the importance of respecting the rights to privacy, dignity and due process of people living with HIV,” said Annabel Raw, Health Rights Lawyer at the Southern Africa Litigation Centre (SALC), which supported the appeal.
“We commend the acquittal of the appellant and the affirmation by the court that the application of criminal law in cases of HIV transmission and exposure should be primarily protective of people living with HIV from ‘the unjust consequences of public panic.’ Laws relating to the criminalisation of HIV transmission, exposure and/or non-disclosure in the southern and east African region are often overly broad and vague, violate criminal law principles, trump human rights and are based on myths and misconceptions about HIV and its modes of transmission, thus undermining effective public health,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA), who acted as an expert witness for the appellant.
The appellant was represented by Mr Wesley Mwafulirwa of John Tennyson Associates.
NOTE TO PRESS ON PARTIES’ ANONYMITY
The Zomba High Court has issued an order that the names and personal details of the appellant, the complainant and their respective children be anonymised and protected from public disclosure. While press may report on the case, the Court warned that any use of the names or information that may identify the appellant, complainant or children would be a violation of the Court order and subject to contempt of court proceedings.
In granting this order, the Court took judicial note of the fact that the stigma and discrimination attached to HIV continues to be a challenge for people living with and affected by HIV.
For more information:
Annabel Raw (Health Rights Lawyer, SALC): Email: AnnabelR@salc.org.za; t: +27 (0)10 596 8538
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.”
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