Canada: Further reform is needed to redress the harms HIV criminalization brings to the lives of women living with HIV

Recommendations on changes to HIV criminalization don’t go far enough

Earlier this summer, the House of Commons Standing Committee on Justice and Human Rights released a report on Canada’s approach to criminalizing those who don’t disclose that they’re living with HIV to sexual partners.

If the Standing Committee’s recommendations are adopted, they could diminish the harms experienced by women living with HIV under Canada’s current approach to criminalization.

But further consideration and consultation are required in order to fully address the harms that the law introduces to the lives of women living with HIV.

The Supreme Court of Canada articulated the current legal approach in 2012. In so doing, the court interpreted consent and fraud provisions of Canada’s sexual assault laws and ruled that people diagnosed with HIV must disclose their status to sexual partners before engaging in sexual acts that pose a “realistic possibility of transmission.”

The court also stated that there is no legal obligation to disclose prior to sex if a condom is used and the person living with HIV has a consistently low measure of HIV in their blood. This legal understanding of a “realistic possibility” contradicts current scientific knowledge that just one of these conditions is sufficient to eliminate transmission risk.

Scientific evidence endorsed by the federal government demonstrates that an undetectable viral load eliminates the risk of sexual transmission of HIV, regardless of condom use. Similarly, there is a negligible risk of transmission when condoms are used properly, no matter an individual’s viral load.

Today, in addition to being inconsistent with current scientific evidence, HIV nondisclosure prosecutions are widely seen as unjust as they can result in harsh sentences for actions that result in little or no harm.

Canadian prosecutors and courts apply the criminal offences of sexual assault and aggravated sexual assault to prosecute cases of HIV nondisclosure. The latter — one of the most serious offences in Canada’s Criminal Code — carries the possibility of a lifetime sentence and mandatory registration as a sexual offender.

Experts discuss the misuse of sexual assault law in prosecuting cases of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Women living with HIV & the law

“The law is a bigger risk to us than HIV.” Sophie

The criminalization of HIV nondisclosure was purportedly intended to protect women while reducing HIV transmission risk by promoting disclosure and safer sex practices. Instead, research indicates that punitive approaches have the opposite effects, many of them significantly harmful.

As health scientists at Simon Fraser University, we work alongside experts on two studies: the Canadian HIV and Women’s Sexual and Reproductive Health Study (CHIWOS), with researchers also from the University of Toronto, McGill University, University of Manitoba, University of Saskatchewan and McMaster University; and the Women, ART and the Criminalization of HIV (WATCH) study with health partners based at McMaster University.

Findings from these studies indicate that criminalization reinforces socially dominant power dynamics, stigma, marginalization and fear experienced by women living with HIV. Specifically, the current legal requirements ignore the dangers women face in both negotiating the use of condoms and status disclosure due to power inequities, particularly in dependent, violent and non-consensual relationships.

À lire aussi : Why a fulfilling sexual life with HIV matters

“I was raped by three [people …] And if I had told [them] I was HIV positive, I would have been dead. I know it. So where does that fit in the picture?” Julie

Women living with HIV who don’t disclose their status when they are sexually assaulted may themselves be convicted of a sexual offence.

Not only does criminalization contradict scientific evidence around HIV transmission risk, it compromises women’s health-care engagement and deters HIV testing since those who do not know their status cannot be prosecuted. Yet access to HIV testing, treatment and support services is scientifically proven to decrease transmission risk.

Furthermore, women who aren’t prosecuted are still harmed by the law. For example, women who have experienced emotional and physical violence by abusive partners may face the threat of partners falsely reporting that the woman didn’t disclose her HIV status.

Living under the fear of being charged has significant consequences for women’s emotional, mental and physical well-being. This is particularly important given the high rates of physical and sexual violence experienced by women living with HIV in Canada.

“It seems like an impossible situation to prove your innocence.” Miranda

These findings were shared with the Standing Committee through expert testimony by members of CHIWOS and WATCH. Such contributions are integral in moving toward an approach to criminalization that considers the realities of people living with HIV.

Women living with HIV and others share their experiences and knowledge of the criminalization of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Recommendations could go further

The Standing Committee’s report makes recommendations in a positive direction, but the recommendations need to go further to reduce harms to women living with HIV.

Firstly, the committee recommends creating a new offence in the Criminal Code for nondisclosure of an infectious disease where transmission happens. This recommendation says prosecutions should never be pursued in cases where: an individual has an undetectable viral load; condoms were used; the sexual partner of a person living with HIV is taking pre-exposure prophylactics; or the sexual act carries a negligible risk of transmission (oral sex, for example).

This suggested requirement of a new offense where actual transmission occurs would minimize, though not fully eliminate, opportunities for the law to be used as a tool of violence against women.

Though the creation of a new offence would address the current problematic use of sexual assault laws, failing to consider the intent of not disclosing is significant. In 2008, the United Nations urged states to limit prosecution of HIV nondisclosure to extremely rare cases of actual and intentional transmission.

Heed women’s experiences

Without including the element of intent, the committee has not fully addressed the vulnerability of women who may unintentionally transmit HIV during their own sexual assault or an unprotected sexual encounter. Given the widespread violence experienced by women living with HIV in Canada, this is a substantial deficiency in the recommendations.

And, given the report’s recognition that criminalization has not achieved its public-health goal of reducing HIV transmission, transmission of any infectious disease should be addressed by public-health mechanisms rather than the law.

Secondly, the report recommends ensuring that the same conditions are applied cross-country to consider whether prosecutions should proceed in cases where people haven’t disclosed that they are living with HIV. This recommendation would address the disparities in prosecutions of HIV nondisclosure and reduce various harms to people living with HIV.

Finally, the report recommends a review of all past convictions for HIV nondisclosure and increased access to anonymous testing. These measures are significant in beginning to redress the harms introduced by the current legal approach.

But to fully do that, Canada must heed all the experiences of women living with HIV.

US: Laws should not penalise marginalised populations that might lack access to drugs, instead HIV exposure should be decriminalised altogether unless there was clear intent to infect someone

Sex with HIV still a crime? Updated laws divide advocates

ATLANTA (AP) — As Sanjay Johnson describes it, his sexual encounter with James Booth on Oct. 2, 2015, was a one-night stand. But it would bind the men inextricably two years later, when Booth walked into an Arkansas police station and accused Johnson of exposing him to HIV.

Little Rock prosecutors pursued a criminal charge against Johnson even though a doctor said he couldn’t have transmitted HIV to Booth because he was on medication that suppressed his virus.

“It really tested me just to keep going,” Johnson said about his criminal case, which ended this year. “Last year, I thought of suicide.”

Booth said he deserved to know about Johnson’s HIV status regardless of any medical treatment.

“I could have protected myself,” he said.

Roughly 20 states have laws like the one in Arkansas that make it a crime for people with HIV to have sex without first informing their partner of their infection, regardless of whether they used a condom or were on medication that made transmission of the disease effectively impossible.

Health experts and advocates for HIV patients say that rather than deterring behavior that could transmit the virus, such laws perpetuate stigma about the disease that can prevent people from getting diagnosed or treated.

North Carolina and Michigan recently updated their HIV policies to exempt HIV patients from prosecution if they’re on medication that has suppressed their virus. A Louisiana law that took effect in August 2018 allows defendants to challenge a charge of exposing someone to HIV by presenting evidence that a doctor advised them they weren’t infectious.

Many advocates say the new policies create an underclass of people who lack access to drugs and are therefore still vulnerable to prosecution. They say states should instead decriminalize HIV exposure altogether unless the person intends to infect someone.

“We shouldn’t be creating laws that create additional strata and divisiveness among already marginalized populations,” said Eric Paulk, deputy director of Georgia Equality.

The fight comes as the Trump administration aims to eradicate HIV — the virus that causes AIDS — by 2030.

The laws’ defenders point to statistics showing tens of thousands of new HIV diagnoses each year and say that although the disease may not be a death sentence anymore, it still requires a lifetime of expensive medical treatment.

The Arkansas attorney general’s office filed a brief last year in Johnson’s case rejecting the argument that criminalizing HIV exposure no longer served any purpose.

“HIV remains a serious threat to public health,” it wrote.

In Booth and Johnson’s case, they met through a gay dating app.

According to Booth, Johnson denied he was HIV positive before they had unprotected sex. Johnson, 26, said he didn’t remember discussing his HIV status.

A plea deal that prosecutors offered Johnson shows officials were mindful of advances in the science around HIV, said John Johnson, chief deputy prosecutor in Pulaski County. The deal allowed the accused man to avoid prison time and have his record expunged.

But prosecutors also wanted to promote the importance of disclosing HIV to potential sexual partners, he said.

“The flip side of this coin is that there is a victim to this crime,” the prosecutor said.

People with HIV who are on antiretroviral drugs that keep their viral load below a specific threshold have “effectively no risk” of transmitting HIV, according to the federal Centers for Disease Control and Prevention. But as of 2016, only a little more than half of the estimated 1.1 million people living with HIV in the U.S. were virally suppressed, the CDC says.

Sarah Lewis Peel, spokeswoman for North Carolina’s Department of Health and Human Services, said in an email that her state’s new policy ensures HIV prevention and control strategies are “firmly rooted in science.” Responding to criticism that the change leaves some people behind, she listed multiple programs that cover HIV medication.

Critics say states should decriminalize HIV exposure altogether unless there’s intent to infect someone. That would reflect the reality that HIV is manageable and not easy to contract, dozens of advocacy groups said in a July 2017 consensus statement.

Georgia may be headed in that direction. Pending legislation would require intent to transmit HIV for a prosecution.

It’s not clear how many people have faced prosecution under HIV laws around the country, but data from two states analyzed by a think tank at the University of California, Los Angeles, School of Law indicate they aren’t isolated occurrences. Florida and Georgia authorities made nearly 1,500 arrests on suspicion of HIV-related crimes from the 1980s through 2017, hundreds of which resulted in convictions, according to the Williams Institute.

Booth said he tested positive for HIV after his encounter with Johnson. Johnson’s doctor, Nathaniel Smith, told The Associated Press that Booth couldn’t have contracted HIV from Johnson because a lab test around the time of their encounter showed Johnson’s viral load was too low. Smith, who testified in Johnson’s case, also directs the Arkansas Department of Health.

Johnson pleaded no contest in February to aggravated assault as part of his deal with prosecutors and was sentenced to five years’ probation. He would have faced up to 30 years behind bars and the possibility of having to register as a sex offender had a jury convicted him of the HIV-exposure charge.

He has a new job helping people manage their diets but said his arrest and prosecution left a scar.

“It did make me more closed off,” he said.

Booth said he has sympathy for what Johnson went through but stands by his decision to tell police.

“It was something that needed to be done,” he said.

Mexico: Mexican Network of Organisations against HIV criminalisation calls on Veracruz State Congress to stop proposed criminalisation legislation

NGOs call local deputy to stop proposal that criminalizes people with HIV

Google translation, scroll down for Spanish article

On April 30, 2018, the Supreme Court of Justice of the Nation ruled in favour of the Unconstitutionality Action 139/2015 promoted by the National Human Rights Commission

The Mexican Network of Organizations Against HIV Criminalization, called upon the deputy chairwoman of the Administration and Budget Commission of the Veracruz State Congress, Jessica Ramírez Cisneros, to stop the legislative process of her proposal to reform articles 157 and 158 of the Criminal Code of the State , where it is intended to impose from six months to five years in prison and a fine of up to 50 Units of Measurement and Update (UMA) who, fraudulently, endangers of “contagion” of a serious illness to another person

In this, it is considered among these serious and communicable diseases to “syphilis, gonorrhea, hepatitis B and C, herpes, HIV, tuberculosis” , which contradicts the historical ruling of the SCJN that invalidates the modification of the annulment of article 158.

Through a letter addressed to the legislator to channel their efforts for human rights and encourage the repeal of article 158 of the Criminal Code for the Free and Sovereign State of Veracruz of Ignacio de la Llave.

Remember that on April 30, 2018, the Supreme Court of Justice of the Nation ruled in favor of the Unconstitutionality Action 139/2015 promoted by the National Human Rights Commission , at the request of the Multisectoral Group on HIV / AIDS and STIs of the State of Veracruz, against the amendment to article 158 of the Criminal Code for the Free and Sovereign State of Veracruz of Ignacio de la Llave, in whose content the penalty for the offense of alleged “contagion” (transmission should be said) was added to who has sexually transmitted infections, specifying HIV.

ONGs llaman a diputada local parar propuesta que criminaliza a personas con VIH

El 30 de abril de 2018, la Suprema Corte de Justicia de la Nación falló a favor de la Acción de Inconstitucionalidad 139/2015 promovida por la Comisión Nacional de los Derechos Humanos

La Red Mexicana de Organizaciones contra la Criminalización del VIH, hizo un exhorto a la diputada presidenta de la Comisión de Administración y Presupuesto del Congreso del Estado de Veracruz, Jessica Ramírez Cisneros, detener el proceso legislativo de su propuesta para reformar los artículos 157 y 158 del Código Penal del Estado, en donde se pretende imponer de seis meses a cinco años de prisión y multa de hasta 50 Unidades de Medida y Actualización (UMA) a quien, dolosamente, ponga en peligro de “contagio” de una enfermedad grave a otra persona.

En esta, se considera entre dichas enfermedades graves y transmisibles a la “sífilis, gonorrea, hepatitis B y C, herpes, VIH, tuberculosis”, misma que contradice el fallo histórico de la SCJN que invalida la modificación del anula el artículo 158.

A través de una carta dirigida a la legisladora canalizar sus esfuerzos en pro de los derechos humanos y fomente la derogación del artículo 158 del Código Penal para el Estado Libre y Soberano de Veracruz de Ignacio de la Llave.

Recuerdan que el 30 de abril de 2018, la Suprema Corte de Justicia de la Nación, falló a favor de la Acción de Inconstitucionalidad 139/2015 promovida por la Comisión Nacional de los Derechos Humanos, a solicitud del Grupo Multisectorial en VIH/sida e ITS del Estado de Veracruz, en contra de la reforma al artículo 158 del Código Penal para el Estado Libre y Soberano de Veracruz de Ignacio de la Llave, en cuyo contenido se agregó la sanción por delito de presunto “contagio” (debería decirse transmisión) a quien presente infecciones de transmisión sexual, especificando VIH.

[Update]Zimbabwe: Bill to repeal legal provision that criminalises “wilful” transmission of HIV now set to be tabled before Parliament for debate

Source: Chronicle, July 22,2019

Government moves to decriminalise HIV transmission

Zvamaida Murwira, Harare Bureau

GOVERNMENT has moved to decriminalise wilful transmission of HIV to a partner after it gazetted the Marriages Bill that seeks to repeal a legal provision that makes it an offence.

The Marriages Bill, which was gazetted last Friday, decriminalises the transmission of HIV and Aids to another partner, as Government seeks to keep abreast with international standards.

The Bill is now set to be tabled before Parliament for debate.

Section 53 of the Marriages Bill repealed Section 79 of the Criminal Law (Codification and Reform) Act which makes it an offence to transmit HIV to a partner.

Section 79 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) titled “Deliberate transmission of HIV” states that, “(1) any person who

(a) Knowing that he or she is infected with HIV; or

(b) realising that there is a real risk or possibility that he or she is infected with HIV; intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.”

Early this year, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi told Parliament that the global thinking was that the law stigmatised people living with HIV and Aids.

He said initially when the law was enacted, the thinking was that it would help to fight the spread of the disease by criminalising those that transmit it to partners willingly.

Accused persons that have been charged under the law were alleged to have unprotected sex with their spouses knowing that they were infected with HIV.

Proponents who argued for the abolishment of the law argued that at present medical evidence did not determine which of the adult partners was infected first if one was not a virgin at the point of the alleged transmission.

In the past, those charged under the law have challenged the constitutionality of Section 79 of the Criminal law, arguing that their right under section 23 of the Constitution not to be discriminated against on any basis including HIV and Aids status was being violated.

They also argued that their right to protection of the law under section 18 was being violated because the offence in question was so wide, broad and vague.

The challenge to the constitutionality of this offence was focused on the species of this offence requiring only that when the accused had sex with another person, the accused realised the real risk or possibility that he or she was infected with HIV and that there was a real risk that the other person will be infected.

Counsel for the applicants argued that this formulation of the offence violated the constitutional right to protection of law as it was conjectural and vague.

They contended that innocent persons were in danger of being convicted under this provision.

It was argued that there were other ways of HIV and Aids transmission like victims of syringes known to have been contaminated with HIV.

Those who called for the repeal of the law also cited Justice Edwin Cameron, an HIV-positive Justice of the Supreme Court of Appeal in South Africa who said:

“The use of criminal law to address HIV infection is inappropriate except in rare cases in which a person acts with conscious intent to transmit HIV and does so.”

In the past, UNAIDS organisation has urged “governments to limit criminalisation to cases of intentional transmission.”

Source: Bulawayo 24 news, May 11, 2019

HIV/Aids transmission law repeal approved by Cabinet

The Marriages Amendment Bill which will repeal a legal provision that criminalises “wilful” transmission of HIV to a partner has been approved by Cabinet.

Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi said a Clause in the Criminal Law (Codification and Reform) Act that criminalises transmission of HIV by one partner to another would be repealed.

Minister Ziyambi said this yesterday in Harare while responding to questions from journalists during a post Cabinet briefing which was chaired by Environment, Tourism and Hospitality Industry Minister, Prisca Mupfumira.

He said the Marriages Amendment Bill which was approved by Cabinet would also repeal that Clause of the Criminal Law (Codification and Reform) Act.

“Yes, indeed Cabinet approved that we repeal the Criminal Law (Codification and Reform) Act where it speaks about these criminalisation so we will repeal the Criminal Code in this regard,” said Minister Ziyambi.

The Marriages Amendment Bill will soon be gazetted before it is tabled before Parliament for debate.

The decision to decriminalise transmission of HIV dovetails with what Minister Ziyambi told Parliament earlier this year.

In March, Minister Ziyambi made an assurance to repeal the Clause during a question and answer session after Zengeza West legislator Mr Job Sikhala (MDC-Alliance) had asked if Government was considering amending the law which criminalise transmission of HIV.

“When this legislation came into effect, the thinking then was that we need to control the spread of HIV by criminalising those who transmit it to partners knowingly. But the global thinking now is that that law stigmatises people living with HIV and studies have shown that it does not produce the results that were intended. What the Ministry is going to do is to repeal that section of the law and ensure that we keep up with modern trends in the world,” said Minister Ziyambi in the National Assembly.

He said the fastest way of doing it was to incorporate the provision in the Marriages Amendment Bill.

Earlier on Minister Mupfumira said Cabinet approved the Coroner’s Office Bill.

She said the Bill sought to help safeguard human lives through facilitating specialising investigation of preventable deaths and identification of deceased persons.

“The country has previously relied on expatriates for the specialised investigations required to conclude such cases, which arrangement has now become unsustainable. In more precise terms, the Bill will establish an efficient coroner system to look into the cause of death in the following circumstances among deaths that occur without a medical doctor’s attention, surgical operation table deaths and deaths while in jail, police custody or other central authority control,” said Minister Mupfumira.

US: Rep. Tracy McCreery plans to file new bill again next year to change Missouri’s HIV criminalisation statute

Next Steps: ‘Decriminalizing’ HIV in Missouri

As elected officials vacate Jefferson City and return to their families and jobs, The Missouri Times is bringing you updates on big initiatives that didn’t quite make it through before May 17. The “Next Steps” series will showcase progress made on certain legislative issues and a look ahead to what could come.

Missouri’s statute regarding people living with HIV do not reflect “current reality,” according to lawmakers and advocates working to “decriminalize” the disease.

Missouri statute mandates an individual who is knowingly infected with HIV not act in a “reckless” way that could expose another person to the disease without his or her knowledge or consent. Violating the statute could result in a Class A or B felony, depending on if another individual contracted HIV.

The way the statute is written deters people from finding out his or her status and seeking appropriate treatment, advocates say. The statute also suggests an HIV diagnosis is equivalent to a death sentence — but with modern science and medicine, that’s not necessarily the case.

“We need to make sure our laws reflect our current reality,” Rep. Tracy McCreery, a Democrat from the St. Louis area, told The MIssouri Times. “Now, people who are living with HIV live very full, healthy lives. We feel like the statutes need to be updated to be medically accurate so prosecutors have tools to use at their disposal that reflect the current reality of that disease.”

Both McCreery and GOP Rep. Holly Rehder filed bills in the 2019 legislative session that would have changed the state’s statute regarding people with HIV to base prosecution more on an “intent” basis. Although their bills had minor differences, McCreery said the fact both women filed and supported the legislation is indicative that the need for change is bipartisan.

What happened to legislative efforts this year?

Rehder’s HB 167 made it to the House floor where it was debated before it eventually stalled. The bill sought to tweak the criminal statute for someone who exposed another individual to HIV. It would have also ensured protections for someone who took “practical means” to prevent the transmission of the disease such as through compliance with medical treatment or the use of a condom, for some examples.

“Right now, Missouri laws are medically inaccurate and stand as a disincentive to know your status if you have HIV, even though with proper treatment, a person’s life expectancy is almost equal to someone without the virus,” Rehder previously told The Missouri Times.

McCreery’s HB 166 made it through the House Health and Mental Health Policy Committee but did not progress further.

Both bills would apply the law to all serious infectious or communicable diseases instead of just HIV.

Stil, McCreery said the legislative efforts saw success — particularly from an educational standpoint as lawmakers were especially engaged in debate on the House floor before the session ended — and has set them up in a better position for the upcoming session.

“Although we ran out of time with this session with the bill … I think we’re in a much better place starting out in January because now that we’ve had a debate on this bill on the floor, I feel like a lot more colleagues are more supportive of the legislation now and had an ‘aha’ moment on the floor when they realized current statutes were written so long ago and are not based on accurate science,” McCreery said. “I feel like that was a victory.”

“Ultimately we’re both trying to get at the same things: We both think HIV should be decriminalized because if we do that, Missourians would be encouraged to know their status, and then they wouldn’t be facing the possibility of criminal charges by knowing their status,” she added.

So what’s next?

The momentum is there; they just need to capitalize on it, McCreery said of herself and Rehder for the upcoming session. She said she plans to file a similar bill again next year and doesn’t doubt Rehder will too. (Rehder did not respond to a request for comment for this story.)

“We feel we have done a great job of not only getting the conversation started, but we now believe we truly have started to break down the stigma surrounding HIV,” McCreery said.

Ahead of next session, members of the nonprofit Empower Missouri plan to grow the Missouri HIV Justice Coalition as well as meet with prosecuting attorneys and lawmakers — particularly those who sit on committees that might hear the legislation. The organization is also seeking a Senate sponsor for the legislation in the coming session.

“What we have does not work, and it’s important that we change it,” Jeanette Mott Oxford, executive director of Empower Missouri, told The Missouri Times.

Oxford maintained there is still a stigma surrounding HIV that has fueled laws like the one currently on the books in Missouri.

“There are certain things where the public perception works against good public policy, and this is one of those areas where our current law actually rewards ignorance,” Oxford said. “We want to create a world in which everybody is anxious to know their status, will go be tested, and trust that the public health officials won’t go help prosecute them.”

‘Show-Me’ statistics

More than 12,000 people in Missouri are living with HIV, according to data from AIDSVu, a product of Emory University’s Rollins School of Public Health. Caldwell, Jackson, and Mississippi Counties reported the most number of cases per 100,000 people in 2016.

It affects mostly men and minorities in Missouri: More than 46 percent of people living with HIV in Missouri in 2016 are Hispanic or Latinx, nearly 44 percent are black, and more than 5 percent are white. Additionally, more than 82 percent of people living with HIV in Missouri are men.

The Centers for Disease Control and Prevention (CDC) designated Missouri as one of seven states with a “substantial rural burden” for people living with HIV. Within the state, the nation’s health protection agency flagged more than a dozen counties considered vulnerable or at-risk for outbreaks: Bates, Cedar, Crawford, Hickory, Iron, Madison, Ozark, Reynolds, Ripley, St. Francois, Washington, Wayne, and Wright.

Kaitlyn Schallhorn

Kaitlyn Schallhorn is a reporter with The Missouri Times. She joined the newspaper in March 2019 after working as a reporter for Fox News in New York City. Throughout her career, Kaitlyn has covered political campaigns across the U.S. and humanitarian aid efforts in Africa. She is a native of Missouri who studied journalism at Winthrop University in South Carolina. Contact Kaitlyn at kaitlyn@themissouritimes.com.

Canada: Justice Committee report recommends wide-ranging reforms to HIV criminalisation, including removing HIV non-disclosure from sexual assault law

Yesterday, the House of Commons Standing Committee of Justice and Human Rights released a ground-breaking report “The Criminalization of HIV Non-Disclosure in Canada” recommending that the Government of Canada works with each of the Canadian provinces and territories to end the use of sexual assault law to prosecute allegations of HIV non-disclosure.

According to a press release issued by our HIV JUSTICE WORLDWIDE partners, the Canadian HIV/AIDS Legal Network:

People living with HIV currently face imprisonment for aggravated sexual assault and a lifetime designation as a sex offender for not disclosing their HIV status to sexual partners, even in cases where there is little or even zero risk of transmission. This means a person engaging in consensual sex that causes no harm, and poses little or no risk of harm, can be prosecuted and convicted like a violent rapist. We welcome the Committee’s recognition of this unjust reality and their call to end the use of sexual assault laws. We and our allies have spent many years advocating for this critical change.

The report also recommends that Canada limits HIV criminalisation to actual transmission only. The Legal Network notes:

But we must go further: criminal prosecution should be limited to cases of intentional transmission as recommended by the UN’s expert health and human rights bodies. Parliament should heed such guidance. Criminal charges and punishments are the most serious of society’s tools; their use should be limited and a measure of last resort.

However, one of the recommendations that the Legal Network takes issue with is the recommendation to broaden any new law to include other infectious diseases.

Infectious diseases are a public health issue and should be treated as such. We strongly disagree with the recommendation to extend the criminal law to other infectious diseases. We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.

Currently, there is a patchwork of inconsistent approaches across each province and territory. Only three provinces — Ontario, British Columbia and Alberta — have a formal policy in place or have directed Crown prosecutors to limit prosecutions of HIV non-disclosure, and they all fall short of putting an end to unjust prosecutions.

A December 2018 federal directive to limit HIV criminalisation, which solely applies to Canada’s territories, is already having some impact — in January 2019 it led to Crown prosecutors in the Northwest Territories dropping a wrongful sexual assault charge against a man living with HIV in Yellowstone. “We followed the directive and chose not to prosecute,” said Crown attorney Alex Godfrey.

Other positive recommendations in the report include:

An immediate review of the cases of all individuals who have been convicted for not disclosing their HIV status and who would not have been prosecuted under the new standards set out in the recommendations of the Committee.
These standards must reflect “the most recent medical science regarding HIV and its modes of transmission and the criminal law should only apply when there is actual transmission having regard to the realistic possibility of transmission. At this point of time, HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission.”
And, until a new law is drafted and enacted (which is only likely to happen if the current Liberal Government is re-elected in October), there should be implementation of a common prosecutorial directive across Canada to end criminal prosecutions of HIV non-disclosure, except in cases where there is actual transmission.

The report also recommends that any new legislation should be drafted in consultation with “all relevant stakeholders including the HIV/AIDS community”, which the Legal Network also welcomed.

The report is the result of a study of the ‘Criminalization of Non-Disclosure of HIV Status’ that ran between April and June 2019. Many Canadian experts testified as key witnesses to help MPs gain insight into why Canada’s current approach is wrong. HIV JUSTICE WORLDWIDE also submitted a brief to the committee, providing international context to Canada’s extremely severe approach to HIV non-disclosure.

The Legal Network concludes:

The next step is actual law reform. The report makes clear that change to the criminal law is needed. Any new legal regime must avoid the harms and stigma that have tainted the law these past 25 years.

Canada: Criminalisation of HIV non-disclosure to be addressed if government is reelected

Liberals hope to deal with HIV non-disclosure issue if re-elected: Lametti

TORONTO — The Liberals hope to address the if re-elected in the fall, the federal justice minister said Friday as advocacy groups pushed the government to make changes to the law.

HIV non-disclosure has led to assault or sexual assault charges because it’s been found to invalidate a partner’s consent — the rationale being that if someone knew a person had HIV, they wouldn’t consent to sexual activity because of the risk of transmission.

Advocates say the justice system lags behind the science on the issue, with a growing body of evidence saying there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has had a suppressed viral load for six months.

A parliamentary committee has been examining the issue for months and is expected to release a report with recommendations next week. Justice Minister David Lametti said the Liberals want to address the matter but won’t have time to act before the October election.

“Our legislative runway is over,” Lametti said after speaking at a symposium on HIV criminalization in Toronto. “The house will rise at some point, perhaps as early as next week … I hope that our government will be re-elected so we’ll be able to hit the ground running.”

Lametti said the Liberals, if returned to power, could explore options that include drafting a criminal law provision that targets intentional transmission of HIV.

“We need to look at the criminal law … and look at what’s within our jurisdiction … and trying to achieve that balance, as a number of people in the room have stated, in trying to draft a criminal law provision which targets only intent and not criminalize everything else,” he said.

Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, said he’s concerned that the timing of the committee’s report — so close to the federal election — could mean its recommendations get lost.

“It’s unfortunate that it’s taken this long, several-year process since the last election, to get to the point of actually having a committee report with some recommendations that could then inform possible legislation,” he said. “The issue, however, isn’t going to go away for people living with HIV … we will continue to press for Criminal Code reform.”

In 2017, then-federal justice minister Jody Wilson-Raybould said she would examine how the criminal justice system dealt with people who do not disclose their HIV status to sexual partners.

Late last year, the government instructed federal prosecutors in the North that they should no longer prosecute anyone for not disclosing their HIV status to a sex partner where there is no risk of transmitting the virus. The rules apply only in the territories where federal prosecutors have jurisdiction.

Elliott said he’s hopeful that the Justice and Human Rights committee’s report will include a recommendation to establish a consistent policy for prosecutors at the provincial level.

Agencies advocating for de-criminalization of HIV non-disclosure agree that the law needs to change and it is a public health issue, not something that should be dealt with as sexual assault, he said.

“There is just a vast overreach in the Criminal Code as it’s been interpreted and applied,” he said. “Parliament needs to fix that and that will remain the case after the coming election.”

UNAIDS welcomes the decision of the Constitutional Court of Colombia to remove HIV criminalisation article

GENEVA, 13 June 2019—UNAIDS welcomes the decision of the Constitutional Court of Colombia to remove the section of the criminal code that criminalizes HIV and Hepatitis B transmission. Overly broad criminalization of HIV transmission is ineffective, discriminatory and does not support efforts to prevent new HIV infections.

“Public health goals cannot be pursued by denying people their individual rights. The decision by the Constitutional Court of Colombia is a concrete step to ensure the law works for the HIV response, and not against it,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. “UNAIDS will continue to advocate for a protective legal environment and the removal of punitive laws, policies, practices, stigma and discrimination that block effective responses to HIV.”

The Constitutional Court of Colombia established that the law violated the principles of equality and non-discrimination, as it singled out people living with HIV, stigmatising them and limiting their rights. The Court established that the law created a differential treatment that is not reasonable —and therefore constituted discrimination. The Court further established that such law violated the sexual rights of people living with HIV and it was ineffective to meet any public health objectives.

Overly broad and inappropriate application of criminal law against people living with HIV remains a serious concern across the globe. Nine jurisdictions in South and Central America and at least 77 others worldwide still criminalize HIV non-disclosure, exposure and transmission.

UNAIDS filed an intervention before the Constitutional Court of Colombia indicating that no data support the broad application of criminal law to HIV transmission to prevent HIV transmission. Rather, such application risks undermining public health goals and human rights protections. UNAIDS strongly commends the decision taken by the Constitutional Court to restore the dignity and rights of people living with HIV in Colombia.

In 2018, UNAIDS, the International Association of Providers of AIDS Care and the International AIDS Society convened an expert group of scientists who developed an Expert Consensus Statement on the Science of HIV in the Context of Criminal Law. The statement calls on the criminal justice system to ensure science informs the application of the law in criminal cases related to HIV.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram andYouTube.

Colombia: Constitutional Court overturns HIV criminalisation law

Court strikes down article criminalising the spread of HIV

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.

Tres razones llevaron este miércoles a la Corte Constitucional a tumbar el artículo 411 de la ley 599 del 2000 que penalizaba la propagación del Virus de Inmunodeficiencia Adquirida, VIH, origen al sida, y la Hepatitis B.

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.

Canada: B.C.’s improved HIV prosecution guidelines remain out of step with scientific evidence and international guidance

Richard Elliott: B.C.’s improved HIV prosecution guidelines don’t go far enough

Opinion: B.C. has missed an important opportunity to create an updated policy that considers and reflects human rights, updated science and international guidance on this issue. British Columbians, and especially people living with HIV, deserve better.

Last month, the B.C. Prosecution Service changed its approach to HIV criminalization.

A new policy provides direction to prosecutors in cases where someone is accused of not telling their sexual partner they are HIV-positive.

While the Prosecution Service has taken an important step toward limiting misuse of criminal charges in these cases, overall this new policy remains out of step with scientific evidence and extensive international guidance. The result is that people living with HIV in B.C. continue to live under the shadow of unjust prosecution.

No other medical condition has been criminalized as HIV continues to be. Just imagine being told you are HIV-positive. The news is overwhelming at first, but you take on board the medical advice given to you and you learn that thanks to modern medicine you can live a fulfilling, healthy and long life.

You go on to meet someone and have consensual sex. You use a condom, which is the safer sex practice recommended as a cornerstone of HIV prevention since the virus was identified decades ago.

But, because you didn’t tell your sexual partner you have HIV, you can be charged with aggravated sexual assault. Even though HIV cannot pass through an intact condom, you could spend years in jail and be designated a “sex offender” for the rest of your life.

The Prosecution Service has refused to clearly rule out prosecuting people who use condoms. Instead, its new policy only says that using a condom is a factor that “may” weigh against prosecuting someone.

This flies in the face of evidence-based recommendations given by advocacy and human rights groups around the world. These include the international expert consensus statement published last year by leading HIV experts — including three leading Canadian scientists (two of them from B.C.) — concerned that criminal prosecutions in cases of alleged HIV non-disclosure are often based on a poor appreciation of the science.

People living with HIV and advocates across Canada had hoped B.C. would prove itself to be a leader and go even further toward justice than the federal government has done.

In December, Canada’s attorney general issued a directive to limit HIV non-disclosure prosecutions. But it only applies in the territories, where federal prosecutors handle criminal prosecutions. It was disheartening to learn that B.C.’s new policy does not reflect the longstanding scientific knowledge we have about condoms and their effectiveness.

B.C.’s policy shows minor progress in limiting the overly broad use of the criminal law against people living with HIV. It is a positive step, for instance, that it now states there will be no prosecution in cases where the person living with HIV has a “suppressed viral load” for at least four months — this means they have had treatment to suppress the virus in their body to ensure there’s no risk of transmission.

The new policy also says there should be no prosecution for having just oral sex, although with the caveat there must be “no other risk factors present.”

These positive updates reflect current scientific understanding, so it’s perplexing the Prosecution Service maintains an antiquated stance on condom use and persists in potentially prosecuting people who practice safer sex.

B.C. has missed an important opportunity to create an updated policy that considers and reflects human rights, updated science and international guidance on this issue. British Columbians, and especially people living with HIV, deserve better.

Richard Elliott is executive director of the Canadian HIV/AIDS Legal Network