US: Positive Justice Project Members Endorse REPEAL HIV Discrimination Act

Press Release

New York, September 23, 2011 – Members of the Positive Justice Project, a national coalition dedicated to ending the targeting of people with HIV for unreasonable criminal prosecution, voiced their support for the REPEAL HIV Discrimination Act that Congresswoman Barbara Lee (D-CA) introduced today.

Download the REPEAL ACT here

The bill calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It is the first piece of federal legislation to take on the issue of HIV criminalization, and provides incentives for states to reconsider laws and practices that unfairly target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission.

The proposed bill is being met with widespread support.  Ronald Johnson, Vice President for Policy and Advocacy at AIDS United (a Positive Justice Project member) says, “AIDS United supports the REPEAL HIV Discrimination Act. It’s long past time for a review of these criminal and civil commitment laws and we welcome Representative Barbara Lee’s efforts to help local and state officials understand and make needed reforms.”

Thirty-four states and two U.S. territories now have laws that make exposure or non-disclosure of HIV a crime. Sentences imposed on people convicted of HIV-specific offenses can range from 10-30 years and may include sex offender registration even in the absence of intent to transmit HIV or actual transmission.   Though condom use significantly reduces the risk of HIV transmission, most HIV-specific laws do not consider condom use a mitigating factor or as evidence that the person did not intend to transmit HIV.

For example, a man with HIV in Iowa received a 25-year sentence for a one-time sexual encounter during which he used a condom and HIV was not transmitted; although the sentence was eventually suspended, he still was required to register as a sex offender and is barred from unsupervised contact with children. People also have been convicted for acts that cannot transmit HIV, such as a man with HIV in Texas who currently is serving 35 years for spitting at a police officer.

“The Repeal HIV Discrimination Act relies on science and public health, rather than punishment, as the lead response to HIV exposure and transmission incidents.  It embodies the courage and leadership needed to replace expensive, pointless and punitive reactions to the complex challenge of HIV with approaches that can truly reduce transmission and stigma,” remarked Catherine Hanssens, Executive Director of the Center for HIV Law and Policy and a founder of the Positive Justice Project

Representative Lee’s bill requires designated officials to develop a set of best practices, and accompanying guidance, for states to address the treatment of HIV in criminal and civil commitment cases.  The bill also will provide financial support to states that undertake education, reform and implementation efforts.   A fact sheet created by The Center for HIV Law and Policy, AIDS United, Lambda Legal and the ACLU AIDS Project summarizes the problems with HIV criminalization and the measures the REPEAL HIV Discrimination Act takes to address them.

“The REPEAL HIV Discrimination Act will serve a critical role in educating Members of Congress and the public about the harmful and discriminatory practice of criminalizing HIV.  Such state laws often originated during times when fear and ignorance over HIV transmission were widespread, and serve to stigmatize those who are living with HIV.  Our criminal laws should not be rooted in outdated myths.  Rep. Lee is to be commended for her tireless leadership on behalf of those who are living with HIV/AIDS,” said Laura W. Murphy, director of the ACLU Washington Legislative Office.

Scott Schoettes, HIV Project Director at Lambda Legal summarized the support of many. “Lambda Legal wholeheartedly supports the ‘REPEAL HIV Discrimination Act.’ It is high time the nation’s HIV criminalization laws were reformed to reflect the modern reality of living with HIV, both from medical and social perspectives. Except for perhaps the most extreme cases, the criminal law is far too blunt an instrument to address the subtle dynamics of HIV disclosure.”      

Other PJP member statements in support of the REPEAL HIV Discrimination Act:

“The HIV Prevention Justice Alliance expresses our strong commitment to HIV decriminalization and ongoing support for Representative Barbara Lee’s Repeal HIV Discrimination Bill. We have seen how the criminalization of HIV has increased instead of reduced HIV stigma and panic. We have also seen how the criminalization of HIV further targets communities – black, Latino/a, queer, transgender, low income, sex worker, homeless, drug user – which are already disproportionately impacted by HIV/AIDS and mass incarceration. We applaud Congresswoman Lee’s courageous effort to support resiliency and dignity of HIV positive people and loved ones and affirm her continued support for prevention justice and decriminalization.”

—Che Gossett, Steering Committee Member, HIV Prevention Justice Alliance

“This is definitive legislation in the national fight to end HIV discrimination and for survivors of criminalization.”

—Robert Suttle, Member of Louisiana AIDS Advocacy Network (LAAN)

“A Brave New Day is in full support of Rep. Barbara Lee’s Anti-Criminalization bill.”

—Robin Webb, Executive Director of A Brave New Day

“We feel strongly that many such statutes violate human rights, are constitutionally vague, are irrational, and violate the laws of science in that they attempt to characterize known scientifically proven facts about transmission as irrelevant to the issue of potential damage and danger.   We feel that people’s ‘fear’ if irrational cannot provide a basis for a criminal statute or prosecution under same and that a statute cannot be both legal and illogical.”

—David Scondras, Founder/CEO, Search For A Cure

For a list of organizations supporting the REPEAL HIV Discrimination Act, click here.

                                     

Guyana’s Special Select Committee of Parliament on the Criminal Responsibility of HIV Infected Individuals has chosen not to create an HIV-specific criminal law

UN Team on AIDS lauds Guyana 09-Sept-2011 – says ‘Guyana gets it right’ by not criminalising HIV GUYANA’S Special Select Committee of Parliament on the Criminal Responsibility of HIV Infected Individuals has chosen not to make the transmission of HIV a criminal act.The Joint United Nations Team on AIDS, coordinated by the United Nations Joint Programme on HIV/AIDS (UNAIDS) congratulates the Parliamentary Committee for its mature and measured decision.

This latest parliamentary decision clears the way for Guyana’s HIV response to continue proceeding in a rational and productive direction.

(The full Report of the Special Select Committee to the Guyana Parliament are available online and the Speech of Honourable Dr. Leslie Ramsammy, Minister of Health quoted at: https://www.kaieteurnewsonline.com/2011/09/20/franklin-does-about-face-on-motion-to-criminalize-willful-transmission-of-hivaids/ 

Denmark: HIV criminalisation exports stigma, writes Justice Edwin Cameron

Denmark’s leading broadsheet newspaper, Politiken, last week published an article by Justice Edwin Cameron of the South African Constitutional Court congratulating Denmarks’ recent suspension of its HIV-specific criminal statute, and asking that it considers abolishing it altogether – otherwise it risks being emulated in low-income settings that follow the country’s example of an otherwise strong human rights record.

Justice Cameron wrote a similar article for a Norwegian newspaper in 2009 which led to a rethink of the use of Paragraph 155 (the ‘HIV paragraph’) and the establishment of an independent commission to explore the article’s revision.

I hear from my contacts in Denmark that there already some signs that the article has gained the attention of some high-level government ministers concerned about Denmark’s standing in the global HIV community.

Let’s hope it has a positive impact on Denmark’s ongoing government working group currently considering whether the only HIV-specific law in Western Europe should be revised or abolished.

The full text of Edwin Cameron’s article in English is below. The Danish original can be found here.

Debate: Denmark exports stigma
AIDS Foundation
Politiken 8th June 2011, Culture, page 6

INTERNATIONAL COMMENTARY: Danish HIV–law is in conflict with the UN
by Edwin Cameron

When South Africans think of Denmark, we see a country with the highest humanitarian standards that others look up to. I was therefore disturbed to realise recently that Denmark has one of the world’s harshest laws criminalising HIV: Penal Code Section 252, paragraph 2. This provision makes criminal anyone with a life threatening and incurable communicable disease who wilfully or negligently infects or exposes another to the risk of infection.

What is notable about the Danish law is that it includes mere exposure—which means that a person may be guilty even though there is no actual transmission. The penalty is severe—up to eight years of imprisonment. Today the law only covers people living with HIV — a vulnerable group that experiences much discrimination.

Denmark is among the world’s most generous contributors to UNAIDS, the UN agency that works to mitigate the impact of this mass worldwide epidemic. In addition, Denmark has signed the declaration on HIV and AIDS, adopted at the UN Special Session. But Denmark’s penal code is in conflict with both UNAIDS and the UN Declaration’s position.

UNAIDS has called on governments to limit criminalisation to cases where “a person knows his HIV positive status, acts with the intent to transmit HIV and actually transmits HIV’. In contrast, the Danish penal provision is precisely the kind of legislation that UNAIDS warns against.

We know that many developing countries pay attention to the more developed countries’ laws when they formulate their own. In Africa, my own continent, an increasing number of countries have adopted laws that criminalize HIV, with devastating consequences – not least for women. By maintaining its own discriminatory legislation Denmark in effect exports stigma.

But there are strong reasons why criminal laws and prosecutions are bad policy when it comes to AIDS.

1: Criminalisation is ineffective in relation to limiting the spread of HIV. In most cases the virus spreads when two people have sex, neither of them knowing that one of them has HIV. The fact that a penal provision is of no use here is a good reason to doubt whether it should remain on the statute book.

2: Criminal laws and prosecutions are poor substitutes for measures that can really control the epidemic. Experience shows us that well-considered public health programmes that offer counseling, testing and treatment are far more effective tools to prevent the spread of HIV.

3: Criminalisation does not protect women, but makes them victims. In Africa, most of those who know their HIV status are women, because most tests take place at antenatal health care sites. These laws have rightly been described as part of a ‘war on women’.

4: Many of these new laws in Africa, which are being adopted partly on the strength of Western European precedents, are extremely poorly drafted. For example, according to the ‘Model Law’ that many countries in East and West Africa have adopted, a person who is aware of being infected with HIV must inform “any sexual contact in advance” of this fact. But the law does not define “any sexual contact.” Is it holding hands? Kissing? Nor does the law say what “in advance” means.

5: Criminalisation increases stigma. From the first AIDS diagnosis 30 years ago, HIV has carried a mountainous burden of stigma. One overriding reason: the fact that HIV is sexually transmitted.  No other infectious disease is viewed with as much fear and repugnance. It is tragic that it is stigma that drives criminalisation.

6: Criminalisation has a deterrent effect on testing. AIDS is now a medically manageable disease, but why would someone want to know their HIV status when that knowledge may lead to prosecution? Criminalisation assumes the worst about people with HIV and punishes their vulnerability.

Denmark’s legislation also makes it difficult for a country that ought to be a world leader in non-discrimination to confront other countries’ laws.  For example, Denmark has contributed constructively in the international movement to abolish the travel restrictions for people with HIV.

The recent decision by the Danish Justice Minister, Lars Barfoed, to suspend the Danish Criminal Code provision on HIV on the grounds that people living with HIV on treatment today live much longer lives and the risk of transmission of the virus to others is much reduced is certainly a step in the right direction. I congratulate the Danish Government on this decision. The very positive developments in HIV treatment is indeed a good reason to radically reconsider whether Penal Code 252. 2 should exist at all.

Penal Code provisions are a piece of the puzzle that shows how a country treats its citizens. Let us fight stigma, discrimination and criminalisation – and fight for common sense, effective prevention and access to treatment.  Only in this way can we fight this global epidemic.

Edwin Cameron is a judge of South Africa’s Constitutional Court who is himself living with HIV.

Denmark: (Updated) 122 NGOs endorse civil society letter congratulating Government’s suspension of HIV-specific law, asking for its abolition

Update May 31st: A total of 122 civil society organisations from around the world have signed the letter which was delivered to the Danish Minister of Justice and the Danish Minister of Health in mid-May.  Thank you to everyone who signed!

Download the letter here

Original post: March 31st

Following on from last month’s suspension of Denmark’s HIV-specific criminal law, advocates are now working hard to persuade the Government’s working group not to simply rework the law, but to abolish it altogether by avoiding singling out HIV.

They are asking the Government to consider only making intentional transmission of a serious communicable disease a criminal offence, as recommended by UNAIDS, and to focus instead on supporting people with HIV (diagnosed and, even more importantly for public health, undiagnosed) to access comprehensive prevention, counselling, testing, treatment, care and support services.

What happens in Denmark could have a profound effect on policy, not only in neighbouring Nordic countries – where law reform and other HIV criminalisation policy discussions are also taking place this year  – but all around the world.

To parapahrase South Africa’s Justice Edwin Cameron, who argued in his excellent 2009 article for Norwegian newspaper, Dagbladet, “that by applying its own discriminatory legislation, Norway in effect exports stigma,” by abolishing its own HIV-specific law, Denmark in effect would lead the world by exporting rational, public health-based policy.

Full text of the introductory remarks and sign-on letter from AIDS-Fondet (Danish AIDS Foundation) is below.  Please sign before 29th April 2011 by emailing laura@aidsfondet.dk (and include the NAME OF YOUR ORGANISATION and COUNTRY) and distribute to your networks locally, nationally and globally.

Dear non-governmental and community-based organisations, national and regional networks working on HIV and AIDS,

We would like to share with you the good news that last month the Danish Justice Minister suspended Article 252 of the Danish Penal Code used to prosecute people living with HIV for ‘wanton or reckless’ exposure or transmission of HIV. This is the only criminal statute in Western Europe that singles out HIV as “a fatal and incurable disease.”

The law is undergoing revision and a working group is currently considering whether to amend, or totally rewrite, Article 252.

To help this process along, the Danish AIDS Foundation is seeking your endorsement of a letter (see below in bold and/or download here) to the Danish Minister of Justice and the Danish Minister of Health who are leading the working group comprising representatives from the Ministry of Interior, Ministry of Health, the National Board of Health and the Prosecutor General.

By signing, you help:

in congratulating the Ministers on their recent decision to suspend the Danish Penal Code that criminalises HIV exposure and transmission

to ensure that during the revision process the Danish Government takes into due consideration whether the particular section singling out HIV should exist in the Penal Code at all.

It is our hope that a successful revision of the Danish Penal Code will allow for other countries to follow suit.

If your organization wishes to endorse the letter below, please send an email to laura@aidsfondet.dk and include the NAME OF YOUR ORGANISATION and COUNTRY before 29th April 2011.

Your help is very much appreciated!

Dear Minister of Justice, Mr. Lars Barfoed and Minister of Health, Mr. Bertel Haarder


We, the undersigned, non-governmental and community-based organisations, national and regional networks working on HIV and AIDS congratulate you on your wise decision to suspend section 252 (2) and (3) of the Danish Penal Code on HIV and AIDS.


The remarkable progress in treatment options for people living with HIV that allows for the possibility of a normal life expectancy, and greatly reduces the possibility of exposing others to HIV is certainly a good reason to reconsider the law on HIV and AIDS.


However, in your important work on the revision of the Danish law, we strongly urge you to consider whether the particular section in the Penal Code that relates specifically to HIV exposure or transmission should exist at all. HIV exposure or transmission should not be singled out for special consideration as a criminal offence but should be treated in the same manner as other serious communicable diseases.


Punitive laws on HIV and AIDS undercut basic HIV prevention and sexual health messages and are ineffective in reducing the spread of HIV. Since HIV mainly spreads from persons not aware of their HIV status, such laws only fuel ignorance, fear, stigma and discrimination against people aware they are living with the virus. We strongly believe such laws are counterproductive since they lessen the likelihood that individuals will learn their HIV status and access treatment.


In our opinion, consistent with rational, public health-based policy, only intentional transmission of a serious communicable disease should be criminalised. In addition, we strongly suggest that the Danish Government support efforts that emphasise shared responsibility for HIV prevention and the importance of providing comprehensive prevention and care services for people living with HIV to help reduce the risk of transmission to others.




Yours sincerely,

US: State public health officials condemn ‘stigmatising, harmful’ HIV-specific laws

This weekend, the National Alliance of State and Territorial AIDS Directors (NASTAD) released a statement that signifies an extremely important development in the Positive Justice Project’s campaign to repeal HIV-specific criminal laws in the United States.

NASTAD is a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US.

Its motto is: ‘Bridging Science, Policy, and Public Health’.

The message of their statement is simple: repeal these laws because

HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV.

In order to work towards the goal of repealing laws that create HIV-specific crimes or increased penalties for persons who are HIV-positive and convicted of criminal offences, NASTAD will

advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.

Further, NASTAD encourages its members to:

  • Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
  • Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
  • Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.

Todd Heywood of the Michigan Messenger reports that US HIV advocates – including the National Association of People with AIDS (NAPWA) and the Positive Justice Project’s Senior Advisor, Sean Strub – have warmly welcomed NASTAD’s statement.  Read his report at the Michigan Messenger here.

The full text of the statement, below, can also be downloaded as a pdf.

NATIONAL HIV/AIDS STRATEGY IMPERATIVE: FIGHTING STIGMA AND DISCRIMINATION BY REPEALING HIV-SPECIFIC CRIMINAL STATUTES

The National Alliance of State and Territorial AIDS Directors (NASTAD), the organization which represents the public health officials that administer state and territorial HIV/AIDS and adult viral hepatitis prevention and care programs nationwide is gravely concerned about the corrosive impact of sustained stigma and discrimination on state, federal and local efforts to combat HIV/AIDS in the United States. The National HIV/AIDS Strategy (NHAS) provides an unprecedented strategic blueprint for reducing HIV/AIDS incidence through the scale-up of interdisciplinary, impactful prevention approaches. NASTAD acknowledges that the NHAS is not a magic bullet; however, the NHAS’ central vision of the U.S. becoming “a place where new HIV infections are rare” cannot be realized until the nation aggressively responds to the core of the matter: pervasive and unmitigated stigma and discrimination against people living HIV/AIDS that diminishes our best efforts to combat one of the greatest public health challenges of our time.

As a member of the Positive Justice Project, a coordinated national effort to address “HIV criminalization” statutes – laws that create HIV-specific crimes or which increase penalties for persons who are HIV positive and convicted of criminal offenses – NASTAD supports efforts to examine and support level-headed, proven public health approaches that end punitive laws that single out HIV over other STDs and that impose penalties for alleged nondisclosure, exposure and transmission that are severely disproportionate to any actual resulting harm. Steps identified to reach this goal in the Federal Implementation Plan include step 3.3, Promote public health approaches to HIV prevention and care which states that “state legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to screening for, preventing and treating HIV.” In addition, step 3.4, Strengthen enforcement of civil rights laws requires an examination and report by the Department of Justice on HIV-specific sentencing laws and implications for people living with HIV.

HIV criminalization has often resulted in egregious human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty- four states (34) and two (2) U.S. territories explicitly criminalize HIV exposure through sex, shared needles or, in some states, exposure to “bodily fluids” that can include saliva. Examples include:

 

  • A man with HIV in Arkansas was sentenced to 12 years (and must register as a sex offender after release) when he failed to disclose his status with his girlfriend and another woman – both women tested negative;

 

 

  • A man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom;

 

 

  • A woman with HIV in Georgia, who was sentenced to eight years imprisonment   for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV positive status.

 

In none of the cases cited was HIV transmitted. In fact, most prosecutions are not for transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing stories about verbal consent that are nearly impossible to prove.

HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV. NASTAD members commit to examining existing public health policies related to HIV criminalization that may exacerbate stigma and discrimination and lessen the likelihood that individuals will learn their HIV status. NASTAD members will also continue to emphasize the importance of providing comprehensive prevention and care services for HIV positive individuals to help reduce the risk of transmission to others. In conjunction with new and existing partners, our members also pledge to:

 

  • Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;

 

 

  • Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;

 

 

  • Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.

 

NASTAD will continue to advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.

Approved by NASTAD’s Executive Committee: February 2011

Denmark: Justice Minister suspends HIV-specific criminal law, sets up working group

Denmark’s Justice Minister Lars Barfoed has today suspended Article 252 of the Criminal Code – the so-called ‘HIV law’ – pending an inquiry by a government working group to consider whether the only HIV-specific law in Western Europe should be revised or abolished.

The move was announced today in a press release by AIDS-Fondet (AIDS Foundation) and covered in the gay magazine, Out and About. (Both of these are in Danish, and so I’m relying primarily on Google Translate, although colleagues in Denmark have also been in touch to tell me the exciting news.)

Denmark prosecuted its first case in 1993, but the Supreme Court found in 1994 that the wording of the existing law (“wantonly or recklessly endangering life or physical ability”) did not provide a clear legal base for conviction. The phrase “fatal and incurable disease” was added in 1994, and HIV was specified in 2001.

According GNP+’s Global Criminalisation Scan here have been at least 18 prosecutions: at least one failed due to the accused committing suicide. At least ten involved non-Danish nationals, including seven people of African origin. At least eleven convictions for either sexual HIV exposure or transmission are reported. The maximum prison sentence is eight years.  

Today’s announcement came about as a result of a Parliamentary question from opposition Unity MP, Per Clausen on behalf of the Parliamentary Legal Committee.

“The Minister should state whether the Ministry [of Justice] will consider changing or eliminating the special clause in the legislation that criminalises [HIV-positive individuals for] unprotected sex with uninfected [individuals] in light of the significantly improved treatment options for HIV-positive people, in particular since treatment is able to reduce the risk of infection to [near] zero.”

In his reply, Justice Minister Lars Barfoed explains the history of the legislation and then quotes the Health Protection Agency about HIV ‘risk’ and ‘harm’.

 “Modern combination therapy reduces HIV in the blood by more than 99% during the first weeks of treatment, whereby patients’ general condition improves. The strongly reduced amount of HIV in blood and tissue fluids also greatly reduces the risk of transmission from an HIV-positive person on antiviral therapy. This greatly reduced risk is difficult to quantify but considering the risk to be near zero is a theory that some doctors have put forward, but there is no national or international consensus that about this…The life-expectancy of someone with HIV is no different from the age- and gender-matched background population. HIV is, in other words, not in itself fatal if treated in time; medication taken regularly; and there are otherwise no complications from other diseases, etc. Timely treatment is now so effective and well tolerated, that 85-90% of patients can live normal lives if they take their medication daily. It is the 5-10% of patients who are diagnosed late who still experience a substantial excess mortality and morbidity. [However] HIV is still incurable.”

He goes on to say that the law as it is currently written – casting HIV as a life-threatening condition and criminalising unprotected sex by a person with HIV – appears to be obsolete and that the working group must consider whether to amend, or totally rewrite, Article 252.

The working group will comprise Justice Minister Barfoed and Interior Affairs and Health Minister Bertel Haarder with representatives from the Ministry of Interior, Ministry of Health, the Health Protection Agency and the Prosecutor General.  It is believed they will come to a conclusion later this year. (Update Feb 22: My contact at AIDS-Fondet tells me this process will take place much sooner, within the next two months.)

In their press release AIDS-Fondet notes that it has been working on changing the law for years and so this development is very welcome.

We hope this suspension is the beginning of the end of the so-called HIV Criminal Law. This criminal provision is in itself a barrier to prevention, and there has also long been a need for the improved treatment of HIV-people to be reflected in the Penal Code, says Henriette Laursen, AIDS-Fondet’s director.

Two of Denmark’s foremost HIV experts, Professor Jens Lundgren and Professor Jens Skinhøj, have previously called for the law’s abolition.

Switzerland: Government ignores expert recommendation to decriminalise non-intentional HIV exposure and transmission

The Swiss Government has ignored expert recommendations to decriminalise everything but intentional HIV exposure or transmission following a consultation on changing Article 231 of the Swiss Penal Code, according to a strongly worded press release from Groupe sida Genève issued yesterday.

At the International AIDS Conference in Vienna earlier this year, the Swiss Federal Commission for AIDS-related issues – the Swiss statement people – described how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. (Download the pdf here)

The law has only ever been used to prosecute people with HIV. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law.

The Swiss Federal Commission for AIDS-related issues issued a statement in September 2010 (available in English here) that stated:

[Current Swiss] legal practice is in blatant contradiction to the tried and tested Swiss Aids policy held by broad social consensus. Accordingly, the FCAI calls for the following requirements from the lawmakers and the practitioners of criminal law (public prosecution and judicial authorities):

1. Public prosecution and judicial authorities have to take into account the scientific findings on the infectiousness of HIV-positive persons under successful therapy (FCAI statement 2008). Persons, who are not considered to be infectious according to the FCAI criteria, shall not be punished. Any processes are to be stopped and previous sentences, when needed, are to be revised.

2. Also for HIV-positive persons, whose virus count is not yet under the detection limit, the risk of transmission is very low. The courts are therefore advised not to undertake hastily a possible deliberate action. The highest court of law of the Netherlands, in a leading decision in 2005, made an exemplary judgement in this regard.

3. The legislative body has to amend Art. 231 SPC such that amicable unprotected sexual contact may no longer be subsumed under this code. An opportunity for this is offered by the current (2010) revision of the epidemic law.

 The draft of the proposed new Law on Epidemics removed much of the draconian provisions of  Article 231, leaving only intentional exposure or transmission a criminal offence.

However, according to Groupe sida Genève

The present version put before the assembly maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.

Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.

The consequence is that Switzerland will move from having one of the most draconian and discriminatory laws on HIV exposure in the world to one that is similar to Canada’s – making disclosure of HIV-positive status a defence to alleged exposure or transmission, in effect mandating disclosure before any kind of unprotected sex by someone aware they are living with HIV.  This is a lost opportunity for Switzerland to lead the world in decriminalisation of non-disclosure, alleged exposure and non-intentional transmission (following the lead of The Netherlands in 2005).

Although a previous Geneva Court of Justice aquittal (and the upholding of the subsequent Federal Court appeal) now suggests that someone with an undetectable viral load would not be found guilty of HIV exposure (with or without disclosure), this is not the case in Switzerland’s 25 other cantons.

As Groupe sida Genève point out this latest development “not only maintains the criminalisation of HIV-positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination.”

I’ll be posting more on this once I’ve digested all of the documents linked to in the press release below, and spoken with some insiders in Switzerland.  But I join Groupe sida Genève in condemning “the backwards attitude” of the Swiss authorities. 

Full press release below:

Groupe sida Genève denounces the proposed changes to art. 231 of the Swiss Penal Code. Exposure and transmission of HIV will remain a criminal offense despite best evidence that criminalisation is incompatible with the aims of successful general prevention programmes.

The executive branch of the Swiss government, the Federal Council, has introduced a bill in the federal assembly to revise the Federal Law on fighting infectious human diseases. (See the Federal Department of the Interior’s press release of Friday December the 3rd)

Included in the new provisions was one, article 86 (80 in the consultation version), to amend article 231 of the Swiss Penal Code incriminating the propagation of an infectious human disease.

The bill as it came out of the consultation process proposed to abrogate the paragraphs dealing with intentional and negligent exposure and transmission of HIV. Only the qualified form of malicious intent would have been indictable, the others would not have been considered offenses.

However, the bill, in the present version put before the assembly, maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.

Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.

Groupe sida Genève is convinced this amendment represents the complete opposite of the position taken by the Swiss Federal Commission for AIDS-related issues (FCAI) in its most recent Declaration on the criminality of HIV transmission. It not only maintains the criminalisation of HIV positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination.

Groupe sida Genève is dismayed by this proposal and would like to encourage all to join in our condemnation of the backwards attitude of the Swiss Authorities. Please give this information the widest possible distribution in your networks.

Background

All Swiss federal legislation goes through a consultation procedure where all concerned stakeholders can give their views on proposed legislation. Bills traditionally include the results of the consultation procedure as this ensures the bill achieves the greatest possible consensus.

Article 231, incriminating propagation of a human disease, is one of two provisions in the Penal Code under which persons accused of transmission and exposure to HIV are customarily indicted, the other being article 122 concerning grievous bodily harm.

Under article 231 the intentional transmission of a human disease is punished by a custodial sentence of not more than 5 years whilst the negligent transmission or exposure by a sentence of not more than 3 years. In both cases the minimum sentence is 30 day-fines (jour-amende).

Approximately 39 HIV positive persons have been sentenced under one or the other or a combination of both provisions. In 2009, the criminal chamber of the Geneva Cantonal Court dismissed a case of exposure based on the 2008 declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on infectiousness of HIV under effective ART and the expert testimony of Professor Bernard Hirschel. To date it remains unclear whether the decision will be make jurisprudence.

References and further reading

Federal department of the Interior press release on the Revision of the Federal law on the fight against Epidemics. 03.12.2010 (link)

Declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the criminality of HIV transmission. 18.11.2010 (PDF)

Summary of the declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the infectiousness of HIV on effective ART treatment (Swiss statement). 30.01.2008 (PDF in French) (Canadian HIV/AIDS Legal Network’s English translation  PDF)  The full text of the declaration was published in: Schweizerische Ärztezeitung / Bulletin des médecins suisses / Bollettino dei medici svizzeri / 2008; 89:5)

Bill tabled in the federal assembly as PDF: (in French)(in German)(in Italian), 03.12.201

Message on the bill tabled in the federal assembly as PDF: (in French)(in German)(in Italian), 03.12.2010

Consultation draft of the bill as PDF: (in French)(in German)(in Italian), 08.01.2008

Report on the results of the consultation as PDF: (in French)(in German)(in Italian), 20.10.2008

“S” v. Procureur Général, Judgement, February 23rd 2009, Chambre pénale, Geneva. (PDF in French with an English translation by the Canadian HIV/AIDS Legal Network from the resources for lawyers and advocates webpage.)

Ukraine: Revised HIV law may no longer mandate disclosure

A new version of Ukraine’s HIV-specific law, adopted by the Ukrainian Parliament in its first hearing on 21 October, promises several positive changes, including removal of the statute mandating disclosure of known HIV-positive status prior to any activity that may risk exposure.

According to a press release from the International AIDS Society, the following changes will be implemented:

  • People living with HIV will no longer be barred from entering, staying or seeking residence in Ukraine based solely on HIV positive status;
  • NGOs providing HIV treatment, prevention and care services will have the right to apply for state contracts
  • People living with HIV will have the right to seek compensation for the unlawful disclosure of their HIV status
  • HIV-positive injecting drug users (IDUs) and other IDUs will have the right to receive Opioid Substitution Therapy (OST)
  • People living with HIV will be encouraged to disclose information about the risk of HIV transmission, however they will no longer be required by law to disclose their status to partners

WHO Europe notes

The revised law is the result of two years intensive and collaborative work, including the involvement of non-governmental sector, especially All-Ukrainian Network of People living with HIV, the support from the USAID-funded HIV/AIDS Service Capacity Project in Ukraine and the United Nations Team Group on HIV/AIDS. The change would not have been successful without a close collaboration with the Parliamentarian Committee on Public Health and its chair Dr Tatyana Bakhteeva who was very much committed to the issue.

Dr Volodymyr Kurpita, Executive Director of All-Ukrainian Network of People living with HIV told me in an email that since the final version of the revised Prevention of AIDS and Social Protection of Population Act is still awaiting parliamentary approval in the second hearing, the final wording of the law on HIV disclosure is still not known, but “we can highlight it is more progressive and less restrictive as previous one.”  

In Ukraine, newly diagnosed individuals must undergo a period of mandatory hospitalisation during which it is expected that they will sign an undertaking to obey this 1998 disclosure law. The reckless or intentional “conscious exposing to danger of infection [HIV exposure], or infection [HIV transmission]” is also subject to prosecution, with a maximum penalty of ten years’ imprisonment. There have been at least six prosecutions and four convictions under these laws.

US: Obama administration calls for end to HIV-specific criminal laws

Fantastic news from the United States, courtesy of Todd Heywood at the Michigan Messenger. His article is reproduced in full below.

On Thursday I present my poster at AIDS 2010 analysing two years of US arrests and prosecutions, so this is extremely timely, and very exciting. It is also the first time I have added a ‘decriminalisation’ label to my keywords – a significant milestone!

From the National HIV/AIDS Strategy for the United States, July 2010.

An important step we can take is to ensure that laws and policies support our current understanding of best public health practices for preventing and treating HIV. At least 32 states have HIV-specific laws that criminalize behavior by people living with HIV. Some criminalize behavior like spitting and biting by people with HIV, and were initially enacted at a time when there was less knowledge about HIV’s transmissibility. Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status. Some laws criminalize consensual sexual activity between adults on the basis that one of the individuals is a person with HIV who failed to disclose their status to their partner. CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist. While we understand the intent behind such laws, they may not have the desired effect and they may make people less willing to disclose their status by making people feel at even greater risk of discrimination. In some cases, it may be appropriate for legislators to reconsider whether existing laws continue to further the public interest and public health. In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.

Recommendation 3.3 Promote public health approaches to HIV prevention and care: State legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.

Obama administration calls for end to HIV-specific criminal laws
Advocates call new strategy a ‘wonderful development’

By Todd A. Heywood
Michigan Messenger
7/20/10

Many HIV experts and advocates are applauding the nation’s first comprehensive National HIV/AIDS Strategy, issued on July 13 by the White House, because it calls for an end to state laws that criminalize the transmission of HIV.

Those laws date back to the late 1980s and early 90s, when the death toll from HIV infection was mounting and no medications were readily available to treat the viral infection.

“In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment,” the report says, after acknowledging the rationale behind passage of such laws. “CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist.”

Michigan is one of 32 states with HIV-specific criminal laws. In Michigan, it is a felony for a person with HIV infection to engage in sexual penetration “however slight” without first disclosing their HIV-positive status to the sex partner. The law includes the use of sex toys, which have never been shown to be a route of transmission for HIV. It does not, however, include sharing needles, which is an extremely effective way to transmit the virus, experts say.

National experts weigh in

“It is the first truly meaningful official statement on the issue of criminalization and the role of civil rights in addressing the HIV epidemic, and reflects both the advocacy of HIV civil rights advocates who consistently prioritized the issue, and the willingness of ONAP (Office of National AIDS Policy) staff to respond substantively and decisively,” Catherine Hanssens, executive Director of the HIV Law and Policy Center in New York.

Hanssens pointed out how the strategy’s implementation plan — which is a companion document to the strategy — goes beyond merely advising legislatures to re-visit their HIV-specific laws and contains specific goals to address HIV criminalization, including study by the Department of Justice.

“Individually and collectively, these actions can and should produce findings that HIV-specific criminal laws and prosecutions contravene prioritized public health goals; subject people with HIV to irrational, exceptionalist treatment and punishment solely on the basis of their known HIV status, and also consequently represent a violation of federal antidiscrimination laws created to protect those affected by HIV,” said Hanssens.

Bebe Anderson, director of the Lambda Legal Defense and Education Fund’s HIV Project, echoed Hanssens, calling the strategy and its implementation plan a “wonderful development.”

But she says individual states may struggle with addressing the laws.

“I think it will depend on each state and the political environment,” she noted.

Michigan lawmakers divided on HIV-specific criminal law

Anderson’s statement is reflective of the political reality in Michigan today. With the state House controlled by Democrats and the state Senate controlled by Republicans, lawmakers say that while these changes might be necessary, they will be difficult to achieve.

“If they don’t work, then we have to revisit them,” said House Speaker Andy Dillon of Redford Township of the HIV-specific criminal laws.

“Absolutely, we need to revisit them,” said Rep. Joan Bauer (D-Lansing). “I am open to looking at what is working and what is not.”

Mark Meadows (D-East Lansing) chairs the House Judiciary Committee and he too said he would revisit the laws. He said he felt it was still important to revisit Michigan’s bio-terrorism law to clarify it after a 45-year-old HIV-positive Clinton Township man was charged with the law for allegedly biting a neighbor during a fight. Those charges have since been dismissed by Macomb County Circuit Court Judge Peter Maceroni.

Meadows said prosecutions such as the Macomb case increase stigma against the HIV-positive community. He previously has called that prosecution “silly.”

But Republican law makers say not so quick.

State Sen. Tom George (R-Texas Township) chairs the Senate Health Policy Committee.

“I see these (calls to address specific laws– such as the HIV-specific criminal laws or nondiscrimination laws) as more of a political agenda and less of a public health issue,” George said. “I don’t think changing that or revisiting that is going to make a big difference like testing will.”

George, who is seeking the Republican nomination for governor and is a physician, is pushing legislation which will change Michigan’s law on HIV testing, which requires signed informed consent before an HIV test can be conducted. His legislation would make Michigan an opt-out state, meaning patients would give general consent for HIV testing when consenting for care and treatment. They could opt out of HIV testing, but only in writing.

Rep. Rick Jones (R-Grand Ledge) serves on the House Judiciary Committee. And while he has been a vocal critic of the HIV-as-terrorism prosecution, and previously said he was in favor of repealing the state criminal law on HIV disclosure, now says he no longer favors the move.

“After careful consideration and listening to the feelings of my constituents, I think you should have to disclose it,” says Jones. “Should it just be HIV? Absolutely not. It should include things that are much easier to transmit like Hepatitis and TB.”

Jones is the former sheriff of Eaton County and says he thinks that an HIV-positive person spitting at a police officer, and declaring the hope the officer is infected, should be criminalized, even though there is no known risk of infection from the act.

“It shows intent,” Jones said.

The National HIV/AIDS Strategy specifically cites criminalizing spitting as a concern.

“Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status,” the report states.

Jones admitted it is a crime already in Michigan to spit on a police officer, noting that he vividly recalled while a road officer having a suspect spit at him. That man, Jones said, ended up serving 30 days in jail for the incident.

Regardless of the how debate starts shaping up in Michigan, don’t expect the Michigan Department of Community Health to step into the fray anytime soon, says Debra Szwedja, acting director of the MDCH’s Division of Health, Wellness and Disease Control.

“Really, at this point in time, that is something the legislature will have to initiate,” Szwedja said.

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