Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance (HJN, 2012)

Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance

A video documentary by Edwin J Bernard and Nicholas Feustel
Produced by georgetown media for the HIV Justice Network

Doing HIV Justice demystifies the process of how civil society worked with the Crown Prosecution Service of England & Wales to create the world’s first policy and guidance for prosecuting the reckless or intentional transmission of sexual infection. The result is fewer miscarriages of justice and a better understanding of HIV throughout the entire criminal justice system.

This 30 minute educational and advocacy video explains how the guidance was developed, what challenges the key stakeholders faced and overcame, and what benefits have resulted.

Featuring

The financial contribution of UNAIDS is gratefully acknowledged

Global Commission on HIV and the Law: an analysis of their HIV criminalisation recommendations

Today, the Global Commission on HIV and the Law finally issued its long-awaited report, ‘HIV and the Law: Risks, Rights and Health.’  It was well worth the wait.

“Fundamentally unjust, morally harmful, and virtually impossible to enforce with any semblance of fairness, such laws impose regimes of surveillance and punishment on sexually active people living with HIV, not only in their intimate relations and reproductive and maternal lives, but also in their attempts to earn a living.”

That’s how the Chapter 2 of the report, focusing on the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission begins.  The rest of the chapter pulls no punches either.

Of course, the Global Commmission, and the report itself, cover much more than HIV criminalisation, and it pulls no punches recommending repeal of punitive laws impacting consensual same-sex sex, sex work, drug use and patent laws affecting access to HIV treatment.  However, since this blog – and the focus of my work – is specifically about HIV criminalisation I’m only going to focus on the six pages in the report (and five pages of references) that specifically addresses this issue. 

Five recommendations on HIV criminalisation: click on image to enlarge

To cut to the chase, the report recommends the following:

To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:

2.1. Countries must not enact laws that explicitly criminalise HIV transmission, HIV exposure or failure to disclose HIV status. Where such laws exist, they are counterproductive and must be repealed. The provisions of model codes that have been advanced to support the enactment of such laws should be withdrawn and amended to conform to these recommendations.
2.2. Law enforcement authorities must not prosecute people in cases of HIV non-disclosure or exposure where no intentional or malicious HIV transmission has been proven to take place. Invoking criminal laws in cases of adult private consensual sexual activity is disproportionate and counterproductive to enhancing public health.
2.3. Countries must amend or repeal any law that explicitly or effectively criminalises vertical transmission of HIV. While the process of review and repeal is under way, governments must place moratoria on enforcement of any such laws.
2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.
2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.

The first four points are consistent with the 2008 UNAIDS/UNDP Policy Brief recommendations but go further in terms of tone. For example, using “must” rather than “should”.

Point 2.3 on vertical transmission really needs no further explanation and should be implemented immediately. 

But what did the Commission mean by some of the recommendations, which, when you read them from the point of view of a legislator, or someone who can affect policy in the criminal justice system, might not be quite as clear as they could be?

And what about point 2.5 recommending that anyone imprisoned for HIV non-disclosure, potential exposure or non-intentional transmission have their case reviewed?  Although it doesn’t spell out the criteria for review, they should be consistent with the International Guidelines on HIV and Human Rights published by UNAIDS and the Office of the United Nations High Commissioner for Human Rights (OHCHR).  Since 1998 they have recommended that in order for someone to be convicted, “the elements of foreseeability, intent, causality and consent [must be] clearly and legally established to support a guilty verdict….” If we now consider that the Commission recommends that only intentional and malicious transmission should be a crime, if the above criteria have not been met (and in most cases they have not), the Global Commission recommends immediate release from prison, a pardon and removal of criminal records (and in the US and Canada, removal from the sex offender registry).

I asked Professor Matthew Weait, who served as a member of the Technical Advisory Group for the Commission (the TAG), with particular responsibility for HIV criminalisation about how we should interpret recommendations 2.1, 2.2 and 2.4 in the real world.

The excellent working paper that he prepared for the Commission, The Criminalisation of HIV Exposure and Transmission: A Global Review is also now available to download. A second paper, Criminalisation and the Moral Responsibility for Sexual Transmission of HIV by Matthew and his fellow TAG member, Professor Scott Burris is also now available.

Q: In 2.1 Does the Commission only recommend repealing laws that explicitly criminalise non-disclosure, exposure or transmission?  What, for example, does that mean for Canada, which uses general laws to prosecute non-disclosure?

It’s a good question!  Before I answer it, can I emphasise that what I say here should in no way should be seen as reflecting the views or interpretation either of other TAG members, the Commissioners, or the UNDP Secretariat that provided logistical and other support.  They are personal views.  So – with that in mind – I think it’s important to read this Recommendation in the context of the Report as a whole. What is abundantly clear is that the Commission believes that only the actual and deliberate transmission of HIV may legitimately be criminalised, and all the Recommendations need to be read in that light. This means, in my view, that countries which criminalise HIV under their general laws are also being addressed here.  The reason is that in many such countries it is only HIV transmission, exposure and non-disclosure which is prosecuted in the criminal courts under general provisions which could also be used in the context of other diseases.  The fact that other diseases are not, or extremely rarely so, means that HIV is – to my mind – explicitly criminalised.  Just because HIV is criminalised under a general law doesn’t detract from the fact that such criminalisation is explicit in practice.  You’ll have to follow this up with the Commission though!

Q: In 2.2 Does the Commission mean that law enforcement authorities can prosecute for HIV exposure and non-disclosure where there is proof of intentional or malicious transmission?

I don’t think so, no.  The “must not” construction of the Recommendation does not imply the opposite, especially where to read it this way would be against the entire tenor of the Report. It is very important, in my view, that law enforcement authorities do not take this as a “green light” – not only because it would lead to over-criminalisation (belt and braces) – but it would serve no purpose.  

Q: In 2.4 Does the Commission suggest that prosecutions can still take place that aren’t malicious?  How do you prosecute “with care”?

This Recommendation is in permissive language, similar to that used in the UNAIDS 2008 Policy Guidance, and does not – I think this is important – mandate criminalisation as such.  It seems to me to be intended to provide states with a “let out” clause, reflecting the views of many in the wider HIV policy community, and is politically pragmatic and realistic. Some might think it is a unfortunate that this is in a list of Recommendations, but I think I understand why it has been. It might have been better to phrase the Recommendation in the form, “If countries wish to criminalise HIV, they should only do so in cases of actual and intentional transmission”, but I don’t think we should get too hung up on the exact language here. As with the other Recommendations, it has to be read in the light of everything else in the Report, where it is clear that Commission is arguing for the most restrictive approach possible. It will also, by the way, be important to see whether the Report itself addresses in more detail what is meant by intentional and malicious. Different jurisdictions interpret these terms is in a variety of ways – some equating them with knowledge of status, some with knowledge of the risk of transmission, and some with deliberate or purposive intent (or a combination of all these). The fact that the Commission uses the term “malicious” in Recommendation 2.2 suggests that it has in mind deliberate and purposive intention

As for question of pursuing prosecutions ‘with care’, it is clear that the Commission has affirmed what has been emphasised in a number of recent policy documents, including a recent initiative of UNAIDS.  The highest (I would personally have preferred that, rather than “high”) is necessary when dealing with liability based on expert evidence (as transmission cases typically are, at least where the scientific analysis facilities are available).

Catherine Hanssens highlights the problem with US HIV disclosure laws

This morning, the Global Commission held a press conference that featured several of the Commissioners: US Congresswoman Barbara Lee; Canada’s Stephen Lewis (Co-Director and Co-Founder of AIDS-Free World); and His Excellency Mr. Festus Gontebanye Mogae, former President of Botswana.

Three members of civil society also participated: Nevena Ciric, More than Help, AIDS +, Serbia; Maurice Tomlinson, AIDS-Free World, Jamaica and Nick Rhoades, Positive Justice Project, The Center for HIV Law and Policy, United States.

Nick Rhoades spoke with clarity and power about the lessons learned from his own terrible experience. HIV criminalisation wastes money, harms prevention and human rights, he concluded. Return sanity, science and justice to HIV laws.

I was convicted in 2008 under Iowa’s law titled “criminal transmission of HIV” although HIV was not actually transmitted.  This involved a one-time, consensual sexual encounter with another adult.  My viral load was undetectable, I used a condom – and again, I did not transmit HIV.  However, none of these facts mattered in the eyes of the law.  The judge imposed the maximum sentence of 25 years in prison and the requirement to register as a sex offender for the rest of my life.  After sentencing, the judge was subject to a significant amount of pressure from advocates in the U.S. and even Europe – requesting my sentence be reconsidered.  After being incarcerated for over a year, he released me on five years probation, but I am of course, still a sex offender. [Nick is now appealing his conviction.]

During my course through the correctional system, I transferred facilities four times.  Each time I was transferred, I would be either without medications or missing certain medications for a period of days. And when I was released, I had lost my place on the AIDS Drug Assistance Program, so I was put on a wait-list. The correctional system offered no assistance in finding a social worker or medication assistance once I was released from prison.

The personal toll this has taken on me and my family and friends cannot be measured.  This has caused great mental anguish, financial burdens and major professional barriers for me, now that I am a sex offender.  I have been virtually unemployable.  I am fortunate enough now to be employed from home by The Center for HIV Law & Policy, but most aren’t so lucky.  To this day, I deal with terrible depression.  It’s not easy.

What’s more, the price to enforce these archaic laws is considerable.  The approximate cost to tax-payers to incarcerate just one individual in Iowa – factoring in the cost of medications and routine medical care is approximately sixty-five to seventy thousand dollars annually. This cost is borne by tax-payers and doesn’t include the lost income and contribution to society that incarceration causes. Then consider the price to supervise people convicted under these laws while on probation or parole – often being forced to add in the costs of monitoring offenders on the sex offender registry – and the public is paying an incredible amount of money for enforcing laws that, more often than not, are punishing people for not transmitting HIV.  In many cases, such as mine, taxpayers are paying for the enforcement of laws that punish people with HIV who actually follow the primary prevention messages of public health counselors: stay in treatment, keep your viral load as close to undetectable as possible, use condoms – and otherwise, keep sex safe[r].

These laws enhance stigma that cripples people living with HIV/AIDS from accessing services. They make disclosure issues much more difficult due to ramifications one may face with a mere accusation. I also believe stigma, made thicker by these laws, is keeping people from getting tested.

Furthermore, I have been a member of the Iowa HIV Community Planning group – chaired by the Iowa Department of Public Health – since 2009.  I see all the data.  This year, the Iowa Department of Public Health’s prevention-based budget faced a 25% decrease which will eventually grow to 55% over the next five years. Dollars marked to treat people in care are next for slashing.  Those in care and with undetectable viral loads are up to 96% less likely to transmit the virus, yet we are cutting funding away from proven HIV prevention programs while increasing costly prosecution and imprisonment of people like me living with HIV.  When one considers that there is no evidence that these laws have any impact on people’s sexual behaviors, it is clearly not an effective use of our resources while infringing on individuals’ human rights and working in conflict with public health goals.

Criminal laws and policies that target people based on their HIV status must be repealed.  Please support Congressperson Barbara Lee’s “Repeal HIV Discrimination Act” now, and engage with those who are promoting the movement to return sanity, science and justice to the law’s treatment of HIV.

Following Nick’s powerful testminony, much of the rest of the Global Commission press conference mostly focused on HIV criminalisation in the US and Canada – as it should since the vast majority of prosecutions take place in these two countries, a fact highlighted by Stephen Lewis and echoed by Nick Rhoades.

I was very honoured to be quoted in the report.

I asked Rep. Barbara Lee how it is posssible to change these bad laws when it appears that they have popular support. “Modernising these laws won’t be easy,” she said. “But I have to tell you that the public isn’t really aware of these laws. Once you explain it to them, they’re shocked. What we have to do is mount public education campaigns about these laws. At state level, many state legislators don’t know these laws are on the books, and they can change them if there is the political will. So we need public and political education and civil society support for a political movement to hold politicians accountable. But… yes we can!”

As for other countries using general criminal laws to prosecute non-disclosure, potential exposure and transmission, in the next few months UNAIDS will be releasing a policy consideration document that will help countries understand exactly how to limit their application through a better understanding of HIV science as well as public health and human rights principles. 

There’s going to be a lot more happening around the Global Commission’s Report and all of the amazing evidence the Commission accrued during it’s two year existence.  I recommend spending time on the Global Commission website where you will now find a treasure trove of documents to help further anti-criminalisation advocacy and eventually lead to HIV justice for all.

Scotland: New guidance on prosecutions clarifies law, recognises treatment’s impact on infectiousness

On May 1st, the Crown Office and Procurator Fiscal Service (COPFS) published their Guidance for Scotland on ‘Intentional or Reckless Sexual Transmission, or Exposure to, Infection’.

According to COPFS, the policy aims to “provide guidance to prosecutors but also provide clarity and consistency about this area of the law.”

As well as being helpful in Scotland, the guidance should also be a useful educational and advocacy tool for those many other jurisdictions around the world that prosecute alleged HIV exposure as well as transmission.

Scotland is only the second jurisdiction in the world that uses general criminal law for (mostly) HIV-related prosecutions to produce such guidance. They were a direct result of the Crown Prosecution Service (CPS) for England and Wales’ policy and guidance, first published in March 2008 and updated in July 2011.  In fact, the COPFS guidance specifically states that

where possible, COPFS has sought to reconcile our policy and practice with the policy in England and Wales.

The CPS policy and guidance came about through a process initiated by key individuals from civil society although they are ‘owned’ and produced by the CPS. Like the CPS guidance, the COPFS guidance was advocated for by some of the same key individuals who were also consulted during the process. Unlike the CPS guidance, however, there was no public consultation.

THT, which advocated for, and were consulted on the guidance, along with NAT and HIV Scotland, welcomed the guidance with cautious pragmatism.

Catherine Murphy, Head of Public Affairs for the Terrence Higgins Trust, said: “Crown Office has a duty to prosecute criminal behaviour, but it also has a responsibility to ensure that the law is fair and fit for purpose. We hope this policy will provide greater clarity on a complex and highly sensitive issue. For good public health reasons people with HIV must be able to seek advice on sexual health issues without fear of being reported to the police. Nor should they be subjected to unjustified investigations because the law is vulnerable to misinterpretation by police and the courts.

Being consulted on, but not ‘owning’ the guidance, gave NAT, especially, the freedom to be quoted in the official COPFS press release as being supportive of the guidance but to highlight their concerns in their own press release, which also led to a news story in The Herald with the headline “Fears raised over ‘punitive approach’ to HIV exposure”. In their own press release, NAT’s Executive Director, Deborah Jack states

The Guidance allays many of our most significant worries – but we do still hope that a way can be found to end prosecutions for exposure to risk of HIV infection. Such prosecutions unjustly target people with an HIV diagnosis with all the responsibility for safer sex, despite the fact most transmissions are from the undiagnosed. They also encourage fear and secrecy rather than honesty and openness as we talk about sex – and so harm public health.’

Like the CPS guidance, the COPFS guidance is not HIV-specific despite the fact that all four prosecutions of sexual transmitted infections in Scotland so far have been for HIV (although Giovanni Mola was convicted of both HIV and Hepatitis C transmission). This was welcomed by the US Center for HIV and Policy in their note on the guidance, which states

In a particularly positive development, the guidelines do not single out HIV for special treatment, unlike the dozens of HIV-specific statutes that exist and are enforced in the United States.

Although the guidance has been broadly welcomed by civil society organisations working on HIV in Scotland (and elsewhere) they are a pragmatic response to an unwelcome situation. Guidance cannot change laws, but it can clarify uncertain aspects mitigating the harm of the overly-broad application of the criminal law.  (However one area not covered in this guidance are prosecutions and enhanced sentencing for spitting, biting and/or scatching whilst HIV-positive.  Scotland has had several of these recently, including this case reported today).

There is no legislation that specifically criminalises sexual HIV (or other STI) transmission in Scotland. Although it is possible to prosecute alleged intentional transmission as assault, all cases so far have been for ‘reckless’ exposure or transmission under the Scottish common law offence of ‘culpable and reckless conduct’.

Until the guidance was released yesterday it was unclear whether disclosure in the absence of condoms could be seen as a legitimate defence to accusations of ‘culpable and reckless conduct’ (for alleged sexual exposure or transmission) because Scots law does not recognise consent as a defence to an assault charge.  The guidance has now clarified that prosecutions “will be unlikely” if disclosure of known HIV-positive status has taken place.

Importantly, the guidance has also clarified that alleged sexual HIV exposure charges will not be filed if the accused is on treatment with an undetectable viral load and was counselled that this meant there was a low risk of transmission. Specifically, the guidance states that

Prosecution will be unlikely where the following circumstances apply:

  • The accused did not know that he/she was HIV positive
  • The accused did not understand how HIV is transmitted
  • The accused disclosed his or her HIV positive status to the victim
  • The accused took reasonable steps to reduce the risk of transmission, for example, by using recommended precautions or avoiding higher risk acts
  • The accused was receiving treatment and had been given medical advice that there was a low risk of transmission or that there was only a negligible risk of transmission in some situations or for certain sexual acts

Prosecution will be likely where the following circumstances apply:

  • The accused deliberately misled or concealed information from the victim
  • The accused did not attempt to reduce the risk of transmission, for example by failing to take prescribed medication or by failing to follow particular medical advice
  • The victim was particularly vulnerable in some way
  • There is evidence that the accused had intentionally embarked on a course of flagrant conduct

Download ‘Sexual Transmission or Exposure to Infection – Prosecution Policy’ from the COPFS website.

Oslo Declaration on HIV Criminalisation (HJN, 2012)

Advocates working to end inappropriate criminal prosecutions for HIV non-disclosure, potential exposure and non-intentional transmission from around the world explain why they support the Oslo Declaration on HIV Criminalisation.

Video produced for the HIV Justice Network by Nick Feustel, georgetown media.

Canada: Urgent – support the call for prosecutorial guidelines in Ontario

Canada is facing its most critical point in the history of criminalisation of HIV non-disclosure since the Supreme Court’s 1998 Cuerrier decision which found that not disclosing a known HIV-positive status prior to sex that poses a “significant risk” of HIV transmission negates the other person’s consent, rendering it, in effect, a sexual assault.

In February 2012, the Supreme Court will hear two cases – Mabior and ‘DC’ – that will re-examine whether Cuerrier remains valid in the light of inconsistent lower court decisions regarding what constitutes a “significant risk” of HIV transmission in the context of sexual transmission, especially when the person with HIV wears a condom and/or has an undetectable viral load due to effective antiretroviral therapy.

The main thrust of the arguments from both sides is that the “significant risk” test is unfair and should be reassessed.  However, Manitoba’s Attorney General (who is appealing the Manitoba Court of Appeal’s decision to partially acquit Mr Mabior due to his using a condom or due to his undetectable viral load when not using a condom) is arguing in its appellants factum that the only fair legal test is whether or not a person with HIV disclosed before any kind of sexual contact, because figuring out whether the risk at the time was significant enough is too complicated. It also argues that such non-disclosure should be charged as aggravated sexual assault, which carries a maximum 14 year sentence for each episode of unprotected sex without disclosure.

Lindsay Sinese, in excellent recent blog post from The Court, examining both Mabior and DC as they head to the Supreme Court, highlights what is already problematic about attempting to prove non-disclosure in cases that are often based on he said/(s)he said testimony.

In the jurisprudence surrounding HIV criminalization, th[e DC] case reads like frustrating déja vu, exhibiting several characteristics common to many of the more than 130 people living with HIV who have been subject to criminal charges. Namely, the parties rarely agree on the facts of the case, particularly on whether or not the sexual intercourse in question was protected, how many times it occurred and under what circumstances. These critical facts obviously present significant obstacles with regards to proof and the situation devolves in a “he said, she said” scenario.

The inability to prove the key elements upon which the case turns leaves the outcome to be very unpredictable. As a result, the cases tend to hinge on the credibility of the parties, the determination is, at best, a loose science, and, at worst, an exercise in hunch-based guess work.

Another problematic factor in this realm of prosecution is that charges are frequently laid after the dissolution of a relationship. It could be argued that some of the complaints may be brought for vengeful and vexatious purposes. By leaving HIV positive people vulnerable to criminal prosecution, we are sanctifying the punishment of an already vulnerable group, and pushing this community further onto the fringes of society.

The greatest disappointment, however, is that Ontario’s Attorney General has joined with the AG’s of Manitoba and Quebec (where DC was tried) by obtaining intervener status.

In an application this week to the Supreme Court of Canada, the Office of the Ontario Attorney General asks to be granted intervener status in an upcoming high-profile case revolving around those living with the human immunodeficiency virus, which can lead to AIDS. It argues that the current legal standard the courts must meet has led to different interpretations across the country, resulting in “uncertainty and unfairness” in the Canadian legal system. To remedy this, the government argues that criminal liability should be based only on whether or not someone disclosed his or her HIV-status before engaging in sexual activity and not just on the safety risks they pose.

This is a major slap in the face to the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) campaign urging Ontario’s Attorney General to develop prosecutorial guidelines for Crown prosecutors handling allegations of HIV non-disclosure.  The working group produced an excellent report in June 2011 which calls for restraint in HIV non-disclosure prosecutions and provides detailed legal and practice guidance covering general principles; bail; scientific/medical evidence and experts; charge screening; resolution discussions; sentencing; and complainant considerations. The report, available here, is a must-read for all advocates working in their own countries to obtain prosecutorial guidelines.

In a recent email, CLHE co-chairs Ryan Peck and Anne Marie DiCenso outline the problems they perceive with the promises made by the Ministry of the Ontario Attorney General’s and its current position as intervener.

In December 2010, Chris Bentley, the former Attorney General, promised to develop guidelines. Since then, the Ministry of the Attorney General has not informed CLHE when it will be honouring its commitment to develop prosecutorial guidelines, and has not responded to CLHE’s guideline recommendations. CLHE’s recommendations are at http://www.catie.ca/pdf/Brochures/HIV-non-disclosure-criminal-law.pdf.

It is particularly troubling that the Attorney General, after committing to develop guidelines, has filed materials at the Supreme Court of Canada calling upon the Court to rule that people living with HIV must disclose their HIV status before any sexual activity whatsoever, and that not disclosing should be prosecuted as an aggravated sexual assault, which is one of the most serious offences in the Criminal Code.

When asked about this position, former Attorney General, Chris Bentley, indicated that although the intervention materials advocate for the elimination of the current significant risk test, the Attorney General of Ontario has no intention of taking such a position at the Supreme Court of Canada.

It is vital that the Attorney General fulfill the promises made.

But, as of today, we have not received any guarantee from the new Attorney General, John Gerretsen, that the Ministry of Attorney General will amend its intervention materials and take the position that people living with HIV should not be prosecuted when there is no significant risk of HIV transmission.

The Ministry of the Attorney General has until December 20 to submit its final materials to the Supreme Court.  While preparing the materials, the new Attorney General, John Gerretsen, needs to know that the community is mobilized and is watching him.

The most effective way to do this is for everyone who reads this post to endorse the call for guidelines. While the Ministry may care more about Ontarians signing the call, I have had it confirmed from my contacts at CLHE that signatures from other jurisdictions would be very helpful.

When you sign the call the following email (which you can personalise if you want) will be sent to the new Attorney General, John Gerretsen, urging him to develop guidelines by December 31, 2011.

Dear Minister Gerretsen,
I am writing to congratulate you on your new post as Attorney General, and to urge you to take action on an important issue.

As you know, your predecessor, the Honourable Chris Bentley, committed in December 2010 to draft guidelines for criminal cases involving allegation of non-disclosure of sexually transmitted infections, including HIV.

I urge you to draft these much-needed guidelines by December 31, 2011. I also urge you to take into account the broad-based community input provided to the Ministry of Attorney General by the Ontario Working Group on Criminal Law and HIV Exposure (the Working Group). In spring 2011, the Working Group consulted over 200 people — people living with HIV/AIDS; communities affected by HIV; legal, public health, criminal justice and scientific experts; health care providers; and advocates for women’s rights in the context of sexual violence and the criminal justice system. In June 2011, the Working Group provided the Ministry with their Report and Recommendations based on these consultations.

I trust that you will draft guidelines by December 31, 2011, and that you will provide the Working Group and its constituents with an opportunity to review and provide input on this draft.

Guidelines are urgently needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner.  
Please take action.

UNAIDS announces new project examining “best available scientific evidence to inform the criminal law”

A new project announced yesterday by UNAIDS will “further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health.”

I’m honoured to be working as a consultant on this project, and although I can’t currently reveal any more details than in the UNAIDS article (full text below), suffice to say it is hoped that this project will make a huge difference to the way that lawmakers, law enforcement and the criminal courts treat people with HIV accused of non-disclosure, alleged exposure and non-intentional transmission.

The UNAIDS article begins by noting some positive developments previously highlighted on my blog, including Denmark’s suspension of its HIV-specific law.  It’s not too late to sign on to the civil society letter asking the Danish Government to not to simply rework the law, but to abolish it altogether by avoiding singling out HIV. So far, well over 100 NGOs from around the world have signed the letter.

The article also mentions recent developments in Norway. In fact, the UNAIDS project is funded by the Government of Norway, which has set up its own independent commission to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people who are alleged to have exposed others, to, and/or transmitted, HIV.  It will present its findings by October 2012.

As well as highlighting some very positive recent developments in the United States – the National AIDS Strategy’s calls for HIV-specific criminal statutes that “are consistent with current knowledge of HIV transmission and support public health approaches” and the recent endorsement of these calls by the National Alliance of State and Territorial AIDS Directors (NASTAD) – it also focuses on three countries in Africa.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

I’d like to add a few more countries to the “positive development” list.

Canada
Last September, I spoke at two meetings, in Ottawa and Toronto, that officially launched the Ontario Working Group on Criminal Law and HIV Exposure’s Campaign for Prosecutorial Guidelines for HIV Non-disclosure.

The Campaign’s rationale is as follows

We believe that the use of criminal law in cases of HIV non-disclosure must be compatible with broader scientific, medical, public health, and community efforts to prevent the spread of HIV and to provide care treatment and support to people living with HIV. While criminal prosecutions may be warranted in some circumstances, we view the current expansive use of criminal law with concern.

We therefore call on Ontario’s Attorney General to immediately undertake a process to develop guidelines for criminal prosecutors in cases involving allegations of non-disclosure of HIV status.

Guidelines are needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner. The guidelines must ensure that decisions to investigate and prosecute such cases are informed by a complete and accurate understanding of current medical and scientific research about HIV and take into account the social contexts of living with HIV.

We call on Ontario’s Attorney General to ensure that people living with HIV, communities affected by HIV, legal, public health and scientific experts, health care providers, and AIDS service organizations are meaningfully involved in the process to develop such guidelines.

Last month, Xtra.ca reported that

The office of the attorney general confirms it is drafting guidelines for cases of HIV-positive people who have sex without disclosing their status.

This is a major breakthrough, but the campaign still needs your support. Sign their petition here.

By the way, video of the Toronto meeting, ‘Limiting the Law: Silence, Sex and Science’, is now online.

Australia
Also last month, the Australian Federation of AIDS Organisations (AFAO) produced an excellent discussion paper/advocacy kit, ‘HIV, Crime and the Law in Australia: Options for Policy Reform‘.

As well as providing an extensive and detailed overview regarding the current (and past) use of criminal and public health laws in its eight states and territories, it also provides the latest data on number, scope and demographics of prosecutions in Australia.

There have been 31 prosecutions related to HIV exposure or transmission in Australia over almost twenty years. Of those, a number have been dropped pre-trial, and in four cases the accused has pleaded guilty. All those charged were male, except for one of two sex workers (against whom charges were dropped pretrial in 1991). In cases where the gender of the victim(s) is/are known, 16 have involved the accused having sex with female persons (one of those cases involves assault against minors) and 10 involved the accused having sex with men. This suggests that heterosexual men, who constitute only about 15% of people diagnosed with HIV, are over-represented among the small number of people charged with offences relating to HIV transmission. Further, men of African origin are over-represented among those prosecuted (7 of 30), given the small size of the African-Australian community.

It then systematically examines, in great detail, the impact of such prosections in Australia.

These include:

  1. HIV-related prosecutions negate public health mutual responsibility messages
  2. HIV-related prosecutions fail to fully consider the intersection of risk and harm
  3. HIV-related prosecutions ignore the reality that failure to disclose HIVstatus is not extraordinary
  4. HIV-related prosecutions reduce trust in healthcare practitioners
  5. HIV-related prosecutions increase stigma against people living with HIV
  6. HIV-related prosecutions are unacceptably arbitrary
  7. HIV-related prosecutions do not decrease HIV transmission risks
  8. HIV-related prosecutions that result in custodial sentences increase the population of HIV-positive people in custodial settings

It notes, however, that

There is a narrow category of circumstances in which prosecutions may be warranted, involving deliberate and malicious conduct, where a person with knowledge of their HIVstatus engages in deceptive conduct that leads to HIV being transmitted to a sexual partner. A strong, cohesive HIV response need not preclude HIV-related prosecutions per se. Further work is required by those working in the areas of HIV and of criminal law:

  • To consider what circumstances of HIV transmission should be defined as criminal;
  • To define what measures need to be put in place to ensure that prosecutions are a last resort option and that public health management options have been considered; and
  • To ensure those understandings are part of an ongoing dialogue that informs the development of an appropriate criminal law and public health response.

 That’s exactly the kind of policy outcome that UNAIDS is hoping for.

In the meantime, AFAO suggests some possible strategies towards policy reform. Their recommendations make an excellent advocacy roadmap for anyone working to end the inappropriate use of the criminal law.

Their suggestions include:

  • Enable detailed discussion and policy development
  • Develop mechanisms to learn more about individual cases
  • Prioritise research on the intersection of public health and criminal law mechanism, including addressing over-representation of African-born accused

  • Work with police, justice agencies, state-based agencies and public health officials
  • Improve judges’ understanding of HIV and work with expert witnesses
  • Work with correctional authorities
  • Work with media

I truly hope that the recent gains by advocates in Australia, Canada, Denmark, Guinea, Norway, Togo, Senegal and the United States is the beginning of the end of the overly broad use of the criminal law to inappropriately regulate, control, criminalise and stigmatise people with HIV in the name of justice or public health.

The full UNAIDS article is below.  I’ll update you on the project’s progress just as soon as I can.

Countries questioning laws that criminalize HIV transmission and exposure

26 April 2011

On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.

A working group has been established by the Danish government to consider whether the law should be revised or abolished based on the best available scientific evidence relating to HIV and its transmission.

This development in Denmark is not an exception. Last year, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people transmitting HIV.

In the United States, the country with the highest total number of reported prosecutions for HIV transmission or exposure, the National AIDS Strategy adopted in July 2010 also raised concerns about HIV-specific laws that criminalize HIV transmission or exposure. Some 34 states and 2 territories in the US have such laws. They have resulted in high prison sentences for HIV-positive people being convicted of “exposing” someone to HIV after spitting on or biting them, two forms of behaviour that carry virtually no risk of transmission.

In February 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD), the organization representing public health officials that administer state and territorial HIV programmes, expressed concerns about the “corrosive impact” of overly-broad laws criminalizing HIV transmission and exposure. The AIDS Directors called for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

Best available scientific evidence to inform the criminal law

These developments indicate that governments are also calling for a better understanding of risk, harm and proof in relation to HIV transmission, particularly in light of scientific and medical evidence that the infectiousness of people receiving anti-retroviral treatment can be significantly reduced.

To assist countries in the just application of criminal law in the context of HIV, UNAIDS has initiated a project to further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health. The project, with support from the Government of Norway, will focus on high income countries where the highest number of prosecutions for HIV infection or exposure has been reported.

The initiative will consist of two expert meetings to review scientific, medical, legal and human rights issues related to the criminalization of HIV transmission or exposure. An international consultation on the criminalization of HIV transmission and exposure in high income countries will also be organized.

The project will further elaborate on the principles set forth in the Policy brief on the criminalization of HIV transmission issued by UNAIDS and UNDP in 2008. Its findings will be submitted to the UNDP-led Global Commission on HIV and the Law, which was launched by UNDP and UNAIDS in June 2010.

As with any law reform related to HIV, UNAIDS urges governments to engage in reform initiatives which ensure the involvement of all those affected by such laws, including people living with HIV.

UK: New Guidance for Police Investigating Criminal Transmission of HIV

I’m reproducing below a press release issued yesterday by the National AIDS Trust (NAT) about the new UK (with the exception of Scotland) guidance for police officers investigating allegations of criminal HIV transmission. We’ll hear more about the guidance – a world’s first – and how it was developed, at the International AIDS Conference in Vienna which begins on Sunday.

Police and HIV sector work together to produce guidance

New guidance has been produced to help police when investigating allegations of criminal transmission of HIV. The guidance provides police officers with basic facts about HIV and sets out advice on how to deal with complaints about reckless (or intentional) transmission of HIV in a fair and sensitive manner.

The new guidance from the Association of Chief Police Officers (ACPO) was developed by a working group which included police officers, representatives of the Crown Prosecution Service and the National Policing Improvement Agency, and the National AIDS Trust. Police across England, Wales and Northern Ireland will be expected to follow new guidance.

Ellie O’Connor, Detective Chief Inspector of the Metropolitan Police, comments;

“Investigations into the criminal transmission of HIV are extremely rare but we know they cause a lot of anxiety for the individuals involved. It is important police officers have an understanding HIV and what to do should someone make a complaint.

In producing this guidance we listened to the concerns of the HIV sector and worked in partnership with them. We strongly encourage all police forces to disseminate this guidance and ensure officers know to access it when a case occurs.”

Deborah Jack, Chief Executive of NAT, comments;

“Criminal investigations into HIV transmission worry many people with HIV, even though they occur only very occasionally. We are pleased that we have been able to work together with the police to produce guidance for their officers. The Association of Chief Police Officers took the issue very seriously.

The resulting guidance sets out a fair way to deal with these investigations that keeps in mind the particular sensitivities of HIV. This new guidance should serve to reduce the number of police investigations and reassure people living with HIV of what they can expect in the unlikely circumstance this occurs.”

For further information about this issue NAT and THT have produced a leaflet for people living with HIV – Prosecutions for HIV Transmission: A guide for people living with HIV in England and Wales.

Under the new guidance for police investigating criminal transmission of HIV, people living with HIV can expect:

  • to be treated supportively.
  • for their confidentially to be respected.
  • an investigation of reckless transmission only to be pursued if a complainant has been infected with HIV
  • for the case to be continually discussed with the Crown Prosecution Service to ensure only legitimate complaints are pursued.
  • contact with any other individuals relevant to the case to be initiated by trained staff at GUM clinics.
  • and uninterrupted access to medication in the event of being taken into custody.

If someone reports to police concerned that they have been exposed to HIV in the past 72 hours they will be referred to an open sexual health clinic or the nearest hospital Accident and Emergency Department to ask for PEP.

For a background study of early police investigations of alleged cases of HIV transmission see Policing Transmission by Terrence Higgins Trust.