US: Anti-criminalisation advocacy goes mainstream for World AIDS Day

World AIDS Day saw unprecedented media attention on advocacy against HIV criminalisation in the United States.

Following on from the flurry of media interest stemming from advocacy at the International AIDS Conference held in Washington DC this summer, including a major piece on CNN’s website, CNN’s Dr. Sanjay Gupta interviewed Nick Rhoades and Robert Suttle.

In case the video disappears in the future: here’s the transcript.

Coming up, when sex, even consensual sex becomes a crime. We’ll explain.

(COMMERCIAL BREAK)

GUPTA: This weekend marks World AIDS Day, and this weekend, we got some, what I would consider, extremely troubling news, perhaps surprising as well.

Listen to this closely: more than a quarter of all new HIV infections in this country are in 13 to 24-year-olds. And most of those young people don’t even know that they are infected.

Now, as you know, there’s always been secrecy around HIV/AIDS. But it also brings up a tough issue. More than half of the United States’ states have laws that make it a crime for people with HIV to not disclose it when they have sex. Now, some say that’s only fair, but others say making this crime not just scares people and keeps them from being tested or seeking care.

(BEGIN VIDEOTAPE)

GUPTA (voice-over): Four years ago, Nick Rhoades, an HIV positive, 34- year-old, living in Iowa, met a younger man. They hit it off, and had sex.

NICK RHOADES, CONVICTED OF CRIMINAL TRANSMISSION OF HIV: My viral load is undetectable. I wore a condom. I did everything I could to protect him and myself.

GUPTA: What Rhoades didn’t do was tell his friend about having HIV. And when the friend out later, he sought treatment at a local hospital. And the hospital employee called the police.

Rhodes was arrested, charged with criminal transmission of HIV and after pleading guilty on the advice of his lawyer, he was sentenced to 25 years in prison.

RHOADES: I served over a year locked up, some of it in maximum security and some of it in solitary confinement. And I still have to register as a sex offender for the rest of my life. GUPTA: Scott Schoettes, an the attorney for Lambda Legal, is Rhoades new lawyer. He is asking the Iowa Supreme Court to overturn Rhoades conviction.

SCOTT SCHOETTES, HIV PROJECT DIRECTOR, LAMBDA LEGAL: This case in particular was compelling, it really was a good example of the ways in which these laws are misused by the justice system to punish people in very severe ways for things that should not even be crimes.

GUPTA: About a thousand miles away in Louisiana, a similar case.

Robert Suttle said his partner knew Suttle had HIV, but after a messy break-up, his ex went to the police. Suttle was charged of intentionally exposing the man to the AIDS virus.

ROBERT SUTTLE, CONVICTED OF INTENTIONAL EXPOSURE TO AIDS VIRUS: I was arrested at work and I was booked.

GUPTA: To avoid a possible 10-year sentence, Suttle entered a plea. And he spent six months in jail.

Under the picture on his driver’s license in bold red capital letters, it says “sex offender”. He has to carry that tag for 15 years.

SUTTLE: There are a lot of good people in the world that are HIV positive, but that doesn’t mean that they are criminals. It doesn’t mean they have malicious intent to hurt anybody. They’re just trying to deal and cope with having this disease. And yet, there’s these laws that make us look like we’re criminals.

GUPTA: At least 34 states and two U.S. territories have laws that criminalize activities of people with HIV. Not disclosing your status to a sexual partner, that can land you in jail. So can spitting on somebody or biting them if you have the disease.

Often, it doesn’t matter if you actually transmit the virus. In fact, the man that slept with Rhoades never got HIV.

REP. BARBARA LEE (D), CALIFORNIA: Jail time is not warranted in these cases.

GUPTA: Last year, Congresswoman Barbara Lee introduced legislation to get rid of these state laws.

LEE: Many offenses receive a lesser sentence than the transmission of HIV. And these laws, again, they’re archaic. They’re wrong. They are unjust. And they need to be looked at and taken off of the books.

GUPTA: Prosecutor Scott Burns agrees that the laws need updating, but he also says repeal would be a mistake.

SCOTT BURNS, EXECUTIVE DIRECTOR, NATIONAL DISTRICT ATTORNEYS ASSOCIATION: Any time that someone knows they have HIV or AIDS doesn’t disclose that to the other party, I think, is wrong. I think there should be a sanction. I just don’t think you do that in America. And I think most prosecutors would agree with me. GUPTA: Rhoades and Suttle now work for the Sero Project. It’s a group that fights stigma and discrimination, trying to make the case that what happened to them should never happen to others.

SUTTLE: We cannot sit and ignore the fact that this is happening.

RHOADES: I have to fight for this, and I think there are a lot of people that are fighting, as well.

(END VIDEOTAPE)

GUPTA: Now, I should say the accuser in Nick’s case didn’t want to talk to us. And the identity of Robert’s accuser is sealed as well by court order.

In addition, a local Iowa TV station, KWWL, in the county where Nick Rhoades was prosecuted, led with this fantastic interview with Tami Haught from CHAIN (Community HIV/Hepatitis Advocates of Iowa Network), who is leading Iowa’s campaign to modernize the HIV criminalization law.

KWWL.com – News

Finally, yesterday saw the US National Dialogue on the Criminalization of HIV Transmission, Exposure and Non-disclosure: The role of the States and the Federal Government, on Capitol Hill in Washington DC. I’m sure there will be more written about this, but I’m including below a collection of all the tweets and images created live to give you an idea of the richness of the conversation, who was there, and who wasn’t. Thanks especially to Darby Hickey for summarising the dialogue so well.

HIV/AIDS Rally: Iowans Speak Out Against 709-C

Since the 1990’s, Iowa Code 709-C has made failing to disclose your HIV status a class “B” felony, punishable by up to 25 years in prison. It’s a law that HIV and AIDS advocates hope legislators change in 2013. Laura Friest has lived with HIV for more than 13 years.

Nashua woman wants Iowa's HIV law repealed, says it's discriminatory

A Nashua woman wants Iowa’s HIV law repealed because she says it’s discriminatory. Tami Haught is part of the group “CHAIN” (Community HIV/Hepatitis Advocates of Iowa Network). The group’s goal is to repeal 709c, a state law relating to the criminal transmission of Human Immunodeficiency Virus (HIV).

Kenya: HIV, Law and Human Rights symposium calls for repeal of Aids Control Act (Section 24)

The inaugural national symposium on HIV, Law and Human Rights opened on Tuesday in Nairobi with calls on the Government to repeal the law which criminalises infecting a person who did not have the virus
HIV Equity Tribunal chairman Ambrose Rachier termed the Aids Control Act (Section 24) “counter-productive”, saying it will make people shun HIV testing
According to the law, Mr Rachier said those who wilfully infected others with HIV faced “stiff penalties” of up to seven years in jail

L.G. POZ: REGARDING THE NORWEGIAN LAW COMMISSION REPORT ON CRIMINAL LAW AND THE TRANSMISSION OF DISEASE

Honestly it has taken me some time to “swallow” the Report. I don’t find the Commissions proposal to a new penal code very controversial. To me it’s a slight improvement to the old one (§ 155) and to the § 237/238 which never been used.

Taking Forward the Recommendations of the Global Commission on HIV and the Law

The use of legal environment assessments and the conduct of national dialogue forums are some of the first steps that countries can take in an effort to take forward the findings of the Global Commission on HIV and the Law’s report on HIV and the Law: Risks, Rights and Health.

Norway: Dissenting Law Commission member, Kim Fangen, ‘stands alone’

Last week’s publication of the Norwegian Law Commission’s disappointing report was “a crucial moment for us in Norway – actually for all HIV activists in the Nordic countries,” says Kim Fangen, the only member of the Commission to vote against the use of a specific law to control and punish people with HIV and other sexually transmitted infections.

Kim’s alternative vision, as detailed in Chapter 10 of the report (only available in the full Norwegian version, not the English summary, but translated into English by the HIV Justice Network and included in full below) is one of a supporting and enabling environment, where people living with HIV are seen as part of ‘the solution’ and not ‘the problem.’

“It is not through criminal law that we reduce the spread of HIV,” he writes. “I believe that HIV and other sexually transmitted infections are solely a health issue. That’s where the focus should and must be, if one wants to prevent more infections. This means that we must change our mindset and change our course from criminal regulation to a health-related approach.”

His solution is a uniqely Norwegian version of the new paradigm of HIV prevention for people living with HIV, known as Positive, Health, Dignity and Prevention – a comprehensive approach to supporting people living with HIV with their prevention and social needs, not through fear or coercion but through empowerment and with dignity. Much of the solution is already there in Norway’s HIV Action Plan – but as Kim notes, with a few exceptions, little of the plan has actually been actioned.

In his first interview since the Commission report was released, Kim tells the HIV Justice Network how he feels about the report and what the rest of us can do to help effect a change for the better to mitigate the Nordic region’s overly harsh and punitive approaches to people living with HIV.

Q: As the only person openly living with HIV on the twelve person Commission, what did you hope to achieve?

When I was asked to be asked to be part of the Norwegian Law Commission, I was very happy and proud. I, and many of my friends and colleagues living with HIV, believed it was a promising sign that they had reserved one of the Commission’s twelve seats for someone living with HIV.

I actually believed that there was a genuine will and desire to investigate the issues raised in our mandate and to produce recommendations that hopefully would point Norway in a new direction, towards decriminalising potential HIV ‘exposure’ and unintentional transmission.

I did not think that it would be easy, but I thought it would be possible. I honestly thought that finally there would be no need to single out people with HIV as group so hazardous that Norwegian society felt the need of a specific law to protect itself.

What I never envisaged was that, in the end, I would be standing alone.

Q: When did you realise that you point of view was not going to be supported by the rest of Commission?

It was quite early in the process. I realised that not only was it going to be difficult, but that I was quite alone not wanting a specific law.

I really feel that the reason for my inclusion on this Commission was not to learn more from those of us living with HIV, but was instead a kind of tokenism – by having a person living with HIV on board I believe they thought they would be able to silence us once and for all.

Q: What disappoints you the most about the report?

I cannot help feeling that a great opportunity has been lost and the goodwill of people with HIV misused. This is a sentiment I share with many of my friends and colleagues both at home and abroad. Many of us are so very disappointed. We honestly believed we would finally experience a change now, just as we, ironically, are about to commemorate 30 years since the first Norwegian was diagnosed with HIV.

And so I am afraid that we will not get the debate we so desperately need. I worry that this report will provide politicians with easy solutions, something Norway will not benefit from.

Q: Is there anything positive in the report’s recommendations that you would like to highlight? For example, I was impressed by the recognition that people with HIV (and other communicable diseases) require “psychosocial support to enable them to handle the risk of infection properly, and assistance in dealing with any underlying problems such as mental illness or substance use.”

I’m glad that you pointed this out. I do feel that I have been listened to when I have spoken of supporting people living with HIV, and the clinics can do much more to help in guiding and strengthening each individual. This is the kind of work I am directly involved in myself.

Q: Do you think the report’s content and conclusions are completely consistent with Norway’s commitments to human rights and in terms of making laws based on evidence and not ideology?

No, I do not. I have on several occasions talked about our responsibility to practise what we preach. I do not think Norway is doing that.

Q: How might the report impact the rest of the Nordic region?

HIV and the law are being debated and discussed all over the Nordic region. All of the four countries are at different stages but our goals are the same, to end the overly broad criminalisation of HIV.

My hope is that Sweden, Denmark, Finland and Norway will join forces. We will be so much stronger if we pull together. Next year will we will be commemorating 30 years since Norway had its first HIV diagnosis. We, in the newly-established HIV Patient Network will be using that to the fullest and, of course, criminalisation will be on top of the list.

Q: The process will take another 18 months before parliament decides on whether or not to enact or abolish a specific criminal law. What are your plans?

My only hope now is that the international response to this report will be so substantial, so clear, and so loud that it will have an impact on Norway’s politicians.

I am hoping to organise a joint Nordic meeting in Oslo sometime during 2013, preferably before the deadline for the hearing letter goes out, when we are still able to influence the process before it is finalised some time in 2014.

If we can thoroughly examine the situation in all of the Nordic countries, invite politicians, medical and legal practitioners, experts and specialists in fields like sexuality, ethics and human rights, as well as members of the international civil society, we should be able to strengthen our arguments and support those in office who actually can directly influence the debate.

In the meantime, for those who haven’t already signed the Oslo Declaration on HIV Criminalisation, please take a moment to read it and support our efforts. I would like thank everyone who contributed, who made this possible, and especially to the HIV Justice Network. I know that it has already caused a stir in Norway, and I feel that there is so much more to gain from it. It’s like a tool that is still in its wrapping, and it has yet to reach its full potential.

Below is the full English translation of Kim’s submission to the Commission, outlining his alternative vision, from Chapter 10 of the report.

One of the committee members, Kim Fangen, lives with HIV and has been involved in working in this field for many years.

As stated during the assessments in Section 11.2.1.2, Mr Fangen says that there should be no special penal targeting disease transmission directly between humans. Mr Fangen believes that any criminal proceedings should take place using the general penalty provisions of bodily harm, and that these penal provisions should only be applied where the perpetrator acted with the intent to infect another, and the disease is transferred.

The rationale for this position is stated in the following that Mr Fangen has written on this matter:

New time. New inspiration.

HIV has been a part of our global reality for over 30 years. It is estimated that 60 million people have been infected during this period, 35 million of whom are alive today. For the first time in the history of HIV in the world, data show that the number of people that are newly diagnosed HIV positive is on a downward trend. This is primarily because many people with HIV have access to treatment. Treatment not only allows people with HIV to live a long healthy life, but the majority who are on treatment have a fully suppressed HIV viral load and are thus very unlikely to be infectious. The US Centers for Disease Control and Prevention (CDC) recently reviewed the latest research data and concludes that antiretroviral therapy reduces the risk of a person with HIV transmitting the virus to an HIV-negative person by 96%. UNAIDS has begun to talk about a world without HIV in its 2011-2015 strategic plan, ‘Getting To Zero’. Medical progress has thus changed the situation in a very positive direction. This change should also be reflected in legislation and case law.

However, the situation is not only positive. In some countries and in some groups, we are seeing an increase in the number of new HIV diagnoses. In Norway, the number of annual new HIV diagnoses among gay and bisexual men and other men who have sex with men has tripled since 2002. This increase is very serious and requires that we strengthen and develop prevention among both HIV-negative and HIV-positive individuals.

Does HIV belong in the criminal code?

As person living with HIV, my primary focus has been on HIV when the committee has discussed details of the currently adopted provisions for serious communicable infectious diseases in the 2005 Penal Code § § 237 and 238. Most of my arguments stem from the experiences we have had with HIV in the applicable provisions of the 1902 Penal Code § 155, which for years has rightly been called the ‘HIV paragraph’. As you know, this is not an HIV-specific law, but in practice it has, almost without exception, been used to prosecute HIV. There are only a few cases where it has been applied with another communicable disease (respectively, hepatitis B and hepatitis C).

I think that HIV-related work, both in terms of caring for people with HIV, and preventing new infections, has not well been served by such legislation, which stigmatises those of us with HIV and creates the perception that were are potential criminals, and does not take into account that people with HIV have the right to a good sex life. The legislation does not relate to the psycho-social challenges it means to live with HIV, and is not adapted to the fact that the reduced quality of life and difficulty in coping with safer sex are often intertwined. The legislation has not been clear on what constitutes unlawful sexual behaviour, and criminal liability is not consistent in relation to current knowledge about HIV and the risk of transmission.

Furthermore, I believe that the implementation of this legislation violates the fundamental principles of equality before the law. It seems as if the law is both random and unfair when only a few cases have been filed in recent years, despite the fact that several hundred people are diagnosed with HIV each year. It also seems unfair and counterproductive that all responsibility should rest on those of us who are familiar with our own HIV status, when we know that many are not aware of their own status and that new infections require HIV-negative individuals to choose to have unsafe sex.

In light of the increasing number of new HIV diagnoses among gay and bisexual men and other men who have sex with men, one can rightly ask what does that suggest for this law in terms of HIV prevention? My contention is that it has not served its purpose, whether viewed from a public health perspective or an individual prevention perspective. HIV is no longer a threat to public health, as one assumed it was going to be early in the 1980s. We have been aware of this for many years now. Even before effective treatment arrived, this was a fact. Nevertheless, it seems that the ‘epidemic’ mentality lingers in the minds of many people.

A public health perspective, however, is important when it comes to the spread of other communicable diseases through air, water and food. I have therefore, together with a committee unanimously decided that § 238 should be amended to apply only to such infections, see chapter 11 and the committee draft laws in Chapter 14

It is not through criminal law that we reduce the spread of HIV. I believe that HIV and other sexually transmitted infections are solely a health issue. That’s where the focus should and must be, if one wants to prevent more infections. This means that we must change our mindset and change our course from criminal regulation to a health-related approach. Both partners should be responsible for their own sexual health, but this should not be linked to punishment. I do not believe that criminal law is a suitable tool for regulating health-related behaviours. Using the Penal Code, however, can make it appear as if the Government has been pro-active on this issue when instead it actually creates a false sense of security.

Decriminalisation

I believe that one should not criminalise unprotected sex and consequently the transmission of sexually transmitted infections. In sexual relations between two equal partners who voluntarily decide to have sex, no heed is given to criminalisation / criminal law at home, regardless of whether HIV is transmitted or not. I believe that punishment should only be used in cases where you can prove that someone has intended to transmit a communicable disease and succeeded in doing this. Then the general provisions on bodily harm can be used, but in all other cases general laws on ‘offences against the person’ should not be used.

My suggestion therefore implies a clear decriminalisation, as I suggest that prosecutions should only occur where there is intent in the form of wilful intent and infection actually occurs. Transmission that occurs through dolus eventualis [recklessness] should, I suggest, not be prosecuted, even if infection actually occurs. This also applies to cases where there is only a negligent state of mind. If there has only been the potential for exposure, i.e. infection has not occurred, as I have already suggested, this should not be punished.

People with HIV – an untapped resource

Those of us who are living with HIV want to be involved in reducing infection rates. We want to be “part of the solution” and not be seen as a “problem”. Just as our society desires that all groups of patients are equal partners in health, I believe that people with HIV in particular are an important group to include. I think we are an untapped resource in prevention. We have unique knowledge in that can say something about why we were infected. This knowledge has so far not been made use of – no one asks us about possible underlying / contributory reasons why we were infected. Here, there is a great potential in terms of prevention of new infections, and we want to be involved in this work.

Common goals

Whatever we may think of the Penal Code as all actors within the HIV field (whether government, organisation or activist) a common goal is to prevent people from becoming infected with HIV.

How do we reach this goal? Measures should focus on the HIV-positive and HIV-negative. We must strengthen and set clear requirements for disease control. We need to improve the coping ability of all people living with HIV. We need more testing, more often. Those who are newly diagnosed who wish to start treatment should be allowed to do so. We need to focus on the importance of risk/harm reduction, and realise that it can make a substantial contribution to ‘traditional’ prevention. Doing even something right is better than doing nothing at all.

There is no reason that Norway might not become the best in the world in this area – we have the knowledge, skills and the economy. We have a clear situation, and we are able to reach everyone.

Sexually transmitted infections are a part of our shared reality. It’s not just HIV that is increasing in scope, but other infections. There are an increasing number of challenges, such as treatment-resistant gonorrhoea. We do not yet know the extent to which this will continue and what consequences will ensue. The more times a person is treated for a sexually transmitted infection, the greater the risk of complications or of developing resistance potentially resulting in a chronic condition. Although this information has reached the majority of the population it does not change the habit of having unprotected sex. We can surmise this from the ever increasing number of cases of sexually transmitted infections.

We should find a way to prepare a comprehensive plan as to how Norway should tackle all areas of sexual health. This plan must address both the dark and light sides of sexuality and must deal with sexuality throughout our life. Such a plan must aim to enhance the general population’s sexual health, while also dealing with special measures for vulnerable groups with special challenges, such as gay and bisexual men and other men who have sex with men, refugees, asylum seekers and their families.

This could be done by a committee that will have the mandate to prepare an action plan to enhance overall sexual health, including prevention of sexually transmitted infections. The current national strategic plan for improving sexual health is too one-sided by focusing on the prevention of unwanted pregnancies. Such a committee should have representatives of health authorities as well as representatives of relevant groups and relevant organisations.

National Action Plan

There are many HIV-positive people who believe that the National Action Plan ‘Acceptance and Coping, 2009-2014’ is a very important and appropriate plan for HIV prevention efforts. Here are six ministries and several agencies that are committed to comprehensive efforts in HIV-related work by defining objectives and strategic actions in a number of areas. Some of this is already implemented, but much remains to be done, and the recent mid-term conference showed that things are tough and that there is great frustration among the players.

What has been implemented includes the initiation of the first learning and activity courses for people with HIV. This course was developed through a partnership between The Health Information Centre and Department of Infectious Diseases, both at Oslo University Hospital, and the newly established Council for Patients with HIV has also contributed. Here, among other things, the mastery of sex life is an important part. This has been a successful pilot project that is supposed to be a constant for all who are living with HIV, and to all who are diagnosed with HIV, regardless of nationality, ethnicity and sexual orientation. We believe this is an important service for this patient group that until now has received little follow-up beyond the purely medical field. Another important measure implemented under the HIV plan is the training of health professionals who work with people with HIV to assist in their conversations with patients about changes in health-related behaviours, including sexual behaviour. The tool used is a method called motivational interviewing (MI) which increases the patient’s motivation to change. In 2011 almost 100 health professionals participated in such courses organised by the Directorate of Health. More such courses are needed, and these courses should be offered at different levels, so that MI is an integral part of care.

Such courses for both patients and healthcare providers is something that can increase both the efficacy and quality of life for people with HIV and are therefore very important health promotion and HIV prevention measures. Earlier initiation of treatment and increased focus on testing for HIV and other sexually transmitted infections are other measures that work to prevent new infections.

Apart from the above-mentioned exceptions, very few of the other parts of the HIV plan have been completed. Why has this happened? Why has this work come to a standstill? Why have we not managed to achieve several more goals outlined in the plan? Is it due to a lack of real will of the health authorities and other ministries to drive this plan forward? Have they declared themselves satisfied with making a good plan, and then delegated the responsibility for implementation to civil society and health care providers? Success requires national management and monitoring.

The way forward – a new tool offers new opportunities

I believe we have a unique opportunity now to show other countries how HIV and other sexual transmitted infections can and should be dealt with in a constructive and inclusive manner. By focusing on sexual health in general, and for the whole population, we could experience a reduction of HIV and other sexually transmitted infections. We must work to motivate and to inspire each individual and thus safeguard the best interests of society.

It’s a new era that should inspire all who live and work in this field. We know so much more now than when HIV was incorporated into the Penal Code. We have completely different opportunities today to fight this virus, by helping as many as possible to independently maintain their health. This is where we can help to reverse the negative trend we are experiencing nationally, and it will also give us an opportunity to show the way internationally. There are many eyes focused on Norway these days who are most interested in how we choose to move forward with this challenge. We have a responsibility to make this our opportunity to achieve the very best possible outcome.

Norway: Long awaited Law Commission report disappoints

The long-awaited report from the Norwegian Law Commission, released last Friday, has shocked and disappointed HIV and human rights advocates in Norway and around the world.

After spending almost two years examining every aspect of the use of the criminal law to punish and regulate people with communicable diseases (with a specific focus on HIV) the Commission has recommended that Norway continues to essentially criminalise all unprotected sex by people living with HIV regardless of the actual risk of HIV exposure and regardless of whether or not there was intent to harm. The only defence written into the new draft law is for the HIV-negative partner to give full and informed consent to unprotected sex that is witnessed by a healthcare professional.

As highlighted in this news story from NAM, low or undetectable viral load will provide no defence to “exposure” charges (although the Commission has recommended that it may be a mitigating fact during sentencing). However, in contrast to the recent Supreme Court of Canada ruling, condoms alone will continue to suffice as a defence.

Given the importance of this report – and its many internal inconsistencies that result in a recommendation for a new law that will actually make it easier to prosecute people with HIV for low- (or no-) risk sex, such as the current oral sex prosecution of Louis Gay – I will be writing a series of stories examining different aspects. In the coming days, there will detailed analysis of the Commissions’ report from Professor Matthew Weait as well as an interview with the dissenting Commission member, Kim Fangen.

Health and Care Services Minister, Jonas Gahr Støre, is presented with the report from Law Commission chair, Professor Aslak Syse on Friday 19th October 2012. (Source: Norwegian Ministry of Health and Care Services)

Background

Since the first prosecution in 1995, Norway has been using a 110 year-old law to prosecute potential or perceived HIV exposure or HIV transmission, which has the the primary aim of protecting public health.

With the exception of one prosecution each for hepatitis B and hepatitis C transmission, the law has only been used in relation to HIV, and so consequently, paragraph 155 of the Norwegian Penal Code is usually referred to as ‘the HIV paragraph’. There is no consent nor ‘safer sex’ defence in this law, which essentially criminalises all sex by people with HIV.

A new penal code was adopted in 2005 that added a consent defence for “spouses” or other couples living together on a steady basis – and the discussion text further noted that condom use should also be a defence. However, this has not been enacted due to its being roundly criticised by many HIV and human rights groups in Norway and beyond – including by South African Constitutional Court Justice, Edwin Cameron – as being overly draconian and hypocritical given Norway’s role as an arbiter and defender of international human rights.

Consequently, in December 2010, the Norwegian Government appointed a law commission on penal code and communicable diseases to assess whether or not a criminal law was necessary, and if so, what should be criminalised. The Commission consisted of 12 members, including medical and legal practitioners, scientists and academics with backgrounds in sexuality, ethics and human rights, as well as one HIV activist, Kim Fangen.

Kim spoke about the work of Commission – and its potential impact – at the recent international conference on the criminalisation of HIV non-disclosure, potential or perceived HIV exposure and non-intentional HIV transmission that took place in Berlin. The meeting was co-organised by the European AIDS-Treatment Group (EATG), Deutsche AIDS-Hilfe (DAH), the International Planned Parenthood Federation (IPPF), and HIV in Europe.

At the meeting, Kim noted: “It surprised the Commission and many others that people are still being prosecuted under this paragraph [155] when another paragraph was adopted…in 2005. The usual practice in Norway [and elsewhere] is to take into consideration the revised and adopted paragraph even if it’s not yet in force.”

The Commission met twelve times for up to three days at a time, and consulted with national and international experts on HIV and the law along with government representatives, health organisations, and people living with HIV. Some Commission members also participated in the UNAIDS expert meeting on HIV and the criminal law in Geneva, in August/September 2011, as well as the the high level international consultation on HIV and the criminal law held in Oslo in February 2012, which coincided with the Oslo Declaration meeting where two Commission members were present.

In other words, the Commission had every possible opportunity to come up with a report that would result in Norway leading the world in terms of a rational, proportionate, ethical and just response that balances public health with human rights. Instead – with the exception of Kim Fangen – they opted for the most conservative outcome possible, that appears to ignore much of the legal and scientific expertise presented to it, in favour of a law that they believe will act as a deterrent to risky sex and normalise the long-standing Norwegian traditional of promoting monogamous sexual relationships for procreation.

The report

The Norwegian Committee report, entitled ‘Of love and cooling towers’ (to reflect the report’s lesser focus on environmental health issues as well as on HIV and other communicable diseases) can be viewed or download here. Click here to read the substantial English summary online.

As expected, the report is long and detailed, and covers many aspects of regulating issues that have an impact on the public health. A substantial English-language summary is available. I have reproduced a summary (of summaries) of the Commission’s recommendations as they relate to HIV (and ostensibly other sexually transmitted infections) below.

The members of the Commission have divided opinions on whether the person-to-person transmission of infection should be covered by a special penal provision as is the case at present (section 155 of the 1902 Penal Code). One member proposes that this penal provision be repealed and that no new provision be added to the 2005 Penal Code, and that the provision already adopted in the 2005 Penal Code not enter into force.

The 11 other members find it clearly most appropriate to have a separate penal provision on direct and indirect person-to-person transmission of serious communicable diseases, including through sexual intercourse. This is proposed in the draft of section 237 on transmission of infection in the 2005 Penal Code. A separate provision of this nature makes it possible to introduce, in the text of the statute, impunity in cases where responsible behaviour has been displayed in terms of communicable disease control, and to establish rules for when consent will exempt a person from criminal liability. It is proposed that the threat of criminal prosecution should target the act of transmitting a communicable disease that causes significant harm to body or health, as well as blameworthy conduct that results in exposure of another person to the risk of being infected with such a disease.

Of these 11 members, a minority of two is in favour of a penalty only being applicable when infection is transmitted. The other nine members are of the opinion that the act of exposing another person to the risk of infection should also be punishable when the behaviour in question is blameworthy («on repeated occasions or through reckless behaviour») from the perspective of communicable disease control. This is also warranted for evidentiary reasons.

It is proposed that the threat of criminal sanctions for direct and indirect person-to-person transmission of infection should only apply to intentional and grossly negligent acts, contrary to section 155 of the 1902 Penal Code and section 237 of the 2005 Penal Code, which also cover simple negligence. The draft statute states that no penalty is applicable when proper infection control measures (such as use of a condom in connection with sexual intercourse) have been observed. Nor is a penalty applicable in the case of transmission of infection in connection with sexual activity when the person who has been infected or exposed to the risk of infection has given prior consent in the presence of health care personnel in connection with infection control counselling.

The special comments to the draft statute point out that the prosecuting authority should show restraint in cases of infection transmitted from mother to child, in connection with the use of shared injection equipment among drug users, in connection with sex work and between two infected persons, particularly when both of them are aware of their own and their partner’s infection status.

The proposal entails a certain decriminalisation and reduced criminalisation in relation to the current section 155, and a clarification of when penalties are not applicable. It is proposed that the penalty level be reduced somewhat. The current maximum penalty (six years’ imprisonment) is only to be maintained for aggravated transmission of infection, which will primarily apply in cases where the transmission of infection has caused loss of life, the infection was transmitted to two or more persons, or transmitted as a result of “particularly reckless behaviour”.

What next?

The report’s recommendations are just that – recommendations – and the final outcome may be very different. The process will take a further 18 months, and won’t be finalised until 2014.

In the coming months, the Ministry of Health and Care Services will, together with the Ministry of Justice and Public Security, thoroughly examine the report and recommendations which is classified as an ONR – Official Norwegian Report.

They will then produce an open hearing letter which will allow for further comment.

All the comments and any additional recommendations will then be taken into consideration before the two Ministries send their final recommendation to the Norwegian Parliament.

It is entirely possible that the Government may ignore these recommendations completely.

The Google-translated headline of the Norwegian-language Aftenposten story of July 24 2012 highlighting that two promiment MPs do not want any law that would criminalise potential or perceived HIV exposure or transmission.

In July, two prominent and influential MPs, Håkon Haugli (Labour) and Bent Høie (Conservative) came out in favour of no replacement for Paragraph 155.

If both parties support their positions, there would be a firm majority in Parliament to ignore the Commission’s recommendation and, instead, to repeal article 155 (and its 2005 replacements) and pass no new law at all.

As the experience of its Nordic neighbour, Denmark, has shown, the sky does not fall in – risky sex and new infections do not increase – when there is no law governing the behaviour of people with HIV, because, as numerous studies have found, the vast majority of people living with HIV are responsible; their behaviour is not influenced by criminal law; and most new infections emanate from undiagnosed HIV.

US: Public health experts and politicians support advocacy to modernise Iowa’s HIV law

Activism to modernise the unscientific, unjust and stigmatising HIV-specific criminal statute in Iowa is heating up. Last month, the Iowa HIV Community Planning Group voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalisation statute.

Next Monday, October 15th in the state capital, Des Moines, there will be another of a series of planned CHAIN/Sero Project community forums highlighting these efforts. All Iowa legislators within a 30 mile radius of Des Moines have been invited and Iowa Senator Matt McCoy (Democrat), who earlier this year introduced a bill to repeal and modernise the law, will be in attendance. Although the bill didn’t make it out of subcommittee, he plans to reintroduce another in the legislative session that begins in January.

HIV is not a crime: Monday 15 Oct, 6:30pm at the First Unitarian Church of Des Moines,1800 Bell Ave, Des Moines, Iowa.

Globegazzette.com covered the last community forum, held in Mason City in September, in their story, ‘Groups call for revising HIV disclosure statute.’

The state of Iowa currently has one of the strictest HIV laws in the nation, making the lack of disclosure a Class B felony, punishable by up to 25 years in prison and a lifetime of sex offender status.

The statute makes no exception for lack of transmission of the HIV virus, nor does it take into account the fact that a person infected with HIV is taking the prescribed medication and has very little or no chance of passing it on.

Gay rights groups and others, including the Iowa Department of Public Health, are calling for modernization of the 1998 statute to focus penalties only on intentional or documented transmission of the HIV virus.

They say Iowa’s law is having the unintended effect of discouraging individuals from undergoing HIV testing and from obtaining access to medications that could save their lives and the lives of everyone with whom they may have intimate contact.

Iowa, which has a relatively low HIV incidence rate, ranks second in the nation in prosecutions for nondisclosure.

Pictured Left to Right: Iowa State Representative Sharon Steckman and State Senator Amanda Ragan, CHAIN community organizer and Sero Advisory Board Member, Tami Haught leading Iowa’s campaign to modernize the HIV criminalization law and Sero Advisory Board Member and Activist, Nick Rhoades at a community forum in Mason City on Iowa’s HIV Criminalization Law on Monday, September 10, 2012.

(Picture courtesy of The Sero Project)

Reproduced below is the press release from CHAIN (Community HIV/Hepatitis Advocates of Iowa Network) announcing the Iowa HIV Community Planning Group vote and providing background to their advocacy.

HIV Community Planning Group Supports Repeal of Iowa HIV Criminlization Statute

Des Moines, September 25, 2012

In an historic move, the Iowa HIV Community Planning Group has voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalization statute.

Iowa, like most states, has a law that prohibits intentional transmission of communicable diseases. This statute, Iowa Code 139A.20 is part of public health code. HIV, however, is covered by a separate criminal code, Iowa Code 709C, which makes exposing someone to HIV without their consent a felony punishable by up to 25 years in prison. Repeal of 709C would allow HIV to be covered by the same public health code that governs other infectious diseases.

The National HIV/AIDS Strategy and the National Alliance of State and Territorial AIDS Directors has called for review of HIV criminalization statutes to bring them in line with contemporary science and knowledge about the real routes, risks, and consequences of HIV transmission. The Iowa Department of Public Health has echoed the call for review of the statute. In a letter to the editor of The Des Moines Register on July 29, Randy Mayer, Chief of the Bureau of HIV, STD, and Hepatitis, asked that HIV be treated in the same way as other serious infectious diseases.

“Testing and treatment are our best tools for fighting the epidemic in Iowa Research has now demonstrated that the statutes haven’t had the intended effect of promoting disclosure. We believe that our public health efforts will be more successful without having to fight the stigma that these statutes can create,” said Mayer.

“Having the prestige and expertise of the HIV Community Planning Group working to repeal Iowa’s criminalization statute is vitally important,” said Tami Haught, an HIV+ Nashua resident who is coordinating CHAIN’s statewide campaign to reform the Iowa statute. “The members of the CPG include some of the best-informed and most respected public health professionals and community advocates combating HIV We believe their recognition that the criminalization statute is hurting the public health will be persuasive with legislators.”

Iowa’s statute 709C imposes harsh penalties on persons with HIV who cannot prove they disclosed their HIV status in advance to sex partners. About 25 Iowans with HIV have been charged to date, with some convictions resulting in lengthy sentencing and lifetime sex offender registration requirements, even though HIV was not transmitted and there was little or no risk of it being transmitted.

The statute has been criticized by public health officials, legal experts, and patient advocates in Iowa and across the country as counter-productive, discriminatory, and contributing to further stigmatization of people with HIV. About 36 U.S. states and territories have HIV-specific criminal statutes Originally intended to slow HIV transmission, these laws were typically passed years ago when much less was known about HIV transmission A growing body of research shows how these statutes drive stigma, discourage testing, and are making the epidemic worse.

“HIV criminalization discourages people from getting tested—you can’t be prosecuted if you don’t know your HIV status—yet we know that most new infections are transmitted by people who have not yet gotten tested,” said Jordan Selha, co-chair of Iowa’s Community Planning Group “It’s time we treat HIV like other communicable diseases and use public health science rather than criminal law to guide our approaches to prevention No other disease is singled out as a criminal threat in this way.”

CHAIN has coordinated a statewide campaign to educate and mobilize communities to lobby lawmakers to review the statute when the legislature goes into session in January 2013. They have held community forums in Mason City and Ames.

You can help efforts to repeal the statute by contacting your state legislators and the governor’s office and asking that Iowa Code 709C be repealed. CHAIN will be holding an educational forum on October 15th at the First Unitarian Church of Des Moines and at Simpson College in Indianola on January 16, 2013.

The HIV Community Planning Group promotes, through an ongoing participatory process, effective HIV programming in Iowa in order to reduce the spread of HIV and to provide access to services for those infected. The Centers for Disease Control and Prevention (CDC) mandated community planning for HIV prevention in 1993. The process is designed to create a collaborative effort between public health and the communities they serve.

CHAIN is very excited to have the support of the Iowa HIV Community Planning Group. To join CHAIN’s listserve or get involved with CHAIN and the education and mobilization campaign, contact tami.haught2012(at)gmail.com, or follow CHAIN on Facebook.

Sweden: Majority of MPs want to reform HIV disclosure obligation and ‘HIV exposure’ criminal liability

Two articles commemorating 30 years of HIV in Sweden in Svenska Dagbladet by journalist Tobias Brandel suggest that public – and political – opinion is being positively impacted by a two-year campaign by RFSU (the Swedish Association for Sexuality Education), HIV-Sweden, and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) to raise awareness and advocate against overly-broad HIV criminalisation.

The first article, with the headline, ‘HIV-positive convicted harsher in Sweden‘ focuses on the fact that although HIV has been transformed from a fatal to a chronic disease, more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and ’90s combined.

The second, with the headline, ‘HIV-law divides Government’ highlights the fact that a majority of MPs want to revise both the Communicable Diseases Act (with its ‘information obligation’) and the criminal law that currently allows prosecutions for people with HIV for potential or perceived HIV exposure as well as transmission. However, there are divisions within both the coalition Government and the leading opposition parties.

Since these articles are the most up to date descriptions of the current moves towards law and policy reform in Sweden, I am including (in English via Google translate, with slight amendments for clarity) the full text of both articles below.

This is the Google-translated version, read the original article here

When Joakim Berlin received his diagnosis, HIV was a death sentence.

“The big question my relatives asked was when I was going to die. Of course, I thought it would go pretty quickly,” he says.

It was 1991, five years before the arrival of antiretroviral drugs. Today he leads a “totally normal” life.

“Sometimes I get side effects such as cramps and fatigue. But HIV’s biggest impact has been on my social life. Human ignorance is problematic. The fear is still there.” Neither legislation nor case law has followed the progress of medicine. Although HIV has been transformed from a fatal to a chronic disease more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and ’90s combined. Anyone who has HIV – and knows it – and has unprotected sex with another person is at risk of prosecution for ‘aggravated assault’, ‘attempted aggravated assault’ or ‘creating danger’.

The last year has seen four such convictions in Sweden, according to a review by Svenska Dagbladet. All have resulted in prison sentences – even though they were not convicted of infecting their sexual partners. Only in one case was found to be HIV-positive plaintiff, but failed to clarify whether it was the offender who infected him.

A total of 44 people have convicted of crimes related to HIV since the late 1980s. This makes Sweden one of the countries in the world with the largest number of prosecutions in relation to the number of HIV-positive people, according to the Global Criminalisation Scan.

Sweden was also singled out as a bad example of how the law is used against people with HIV at the International AIDS Conference in Washington last summer. Even UNAIDS, the UN organisation for HIV / AIDS, criticises Sweden.

Ake Örtqvist, an infectious disease physician for Stockholm County Council, is critical of the Swedish court’s reasoning over risk and intent.

“The courts judge very differently which is very unfortunate. Courts and prosecutors should have an increased knowledge about the disease and the concept of risk,” he says.

Last year Denmark abolished a law that criminalises people with HIV referencing the current effective HIV drugs.

“The impact that treatment has in lowering viral load and infectiousness is very real, even if it is scientifically always hard to say zero. I think the courts reasoning is odd and they should embrace the fact that infection risk today is extremely small. One must ask whether it is reasonable to judge according to the Penal Code when the infection is well controlled and transmission has not occurred,” said Jan Albert, Professor of Infectious Disease at the Karolinska Institute. In other words, the virus is spread very rarely by “HIV-men” as the condemned is usually called in the media. The real vectors are people who do not know they have HIV and therefore do not receive treatment.

According to the Communicable Diseases Act HIV-positive individuals must inform their sex partners of their status before having sex. Although it is not possible to judge according to the Infectious Diseases Act so courts often refer to information obligations.

Both RFSL and RFSU argue that the law is actually counter-productive.

“Of course you should tell if you have HIV before sex, but you should not risk punishment if you fail to do so. Criminalisation can also lead to a false sense of security, to believe that the person who is not saying anything does not have HIV,” says RFSU President Kristina Ljungros.

She also believes that the prosecutions may deter people from testing. Even the UN-backed Global Commission on HIV and the Law concludes in a new report that criminalisation contributes to fewer people knowing their HIV status.

Preliminary data from a new U.S. study, received by Svenska Dagbladet, supports these ideas. The Sero Project, in collaboration with Eastern Michigan University interviewed more than 2000 HIV-positive individuals in the United States. Half of the respondents believe that it is reasonable to avoid HIV testing for fear of prosecution, and one in four say they know one or more individuals who chose not to test for fear of being prosecuted.

Joakim Berlin has lived with the virus for over 20 years and works at Positive Group West [part of HIV Sweden] as well as being a member of RFSL’s board.

“It is the responsibility of both parties to protect themselves, so you cannot have laws that criminalise only one party,” he said.

Is it not reasonable to tell your sexual partner so that he can make an informed decision?

“I have the responsibility to ensure that you do not get HIV, and you have the responsibility to ensure that you are not putting yourself at risk,” he says. “The law places full responsibility on the HIV-positive person while everyone else thinks that they can do whatever they want without consequences. Most people get HIV from someone who does not know their HIV-positive status.”

This is the Google-translated version, view the original here

Legislation and case law surrounding HIV has not kept pace with developments in medicine, as Svenska Dagbladet showed yesterday. Although modern HIV treatment reduces infectiousness dramatically, the law is the same as in the 1980s. There is now a majority in parliament who want a review of the Communicable Diseases Act, which forces people with HIV to disclose their status before having sex.

“We think that the issue should be revisited. Our knowledge about HIV is changing rapidly. We can not have laws that are outdated,” says Barbro Westerholm, Liberal Party social policy spokesperson.

As previously reported to Svenska Dagbladet both infectious disease doctors and scientists are critical of Swedish courts that sentence HIV-positive people to prison for unprotected sex, despite there being no alleged transmission. As well as revisiting the Communicable Diseases Act, the Liberal Party would like there to be a review of judicial practice.

The position of the Moderate Party is that there is no need for such a review, but the Party is now in discussion.

“We have not changed our minds, but we’re talking about it. It is clear that we must keep up with new facts and analyses. There is a debate,” says Mats Gerdau, a member of the social committee [which would recommend such a review to the Government].

The Centre Party is open to an amendment of the Penal Code in respect of how the courts reason about intentional and negligent [states of mind] – but they are clearly against removing the Communicable Diseases Act’s notification requirement.

“There is an information obligation for all diseases that are generally hazardous. It is completely illogical to say that it should be removed only for HIV,” says Anders W Jonsson, chairman of the social committee.

The Christian Democrats see no need for any kind of review. All four Alliance parties must agree before the law can be reviewed. The [opposition] Social Democrats, The Green Party and the Left are all clear that they want the information requirements to be removed for HIV.

“The law is counterproductive. It places responsibility solely on the person with HIV. It is a repressive law which, at worst, means people do not get tested,” says Eva Olofsson (Left), also a member of the social committee.

Agneta Luttropp (Greens), another member of the social committee, believes that the law creates a false sense of security.

“The responsibility to protect is on both sides, on both the person who may have HIV and the person who does not. We hope and believe that a change in the law could lead to people being more invested in having protected sex,” she says.

However, the Social Democrats want to keep the information obligation and do not believe that judicial practice needs to be reviewed.