Canada: Lawyers are asking for current cases and past convictions of non-disclosure to be revisited in light of federal justice department report

Lawyers urge second look at HIV non-disclosure cases, convictions following report

Monday, December 11, 2017 @ 9:25 AM | By Terry Davidson

Lawyers are urging Crown attorneys to re-examine HIV non-disclosure cases past and present following a federal report calling for a curbing of criminal prosecutions in light of evolving science around risk of transmission.

Various Canadian criminal lawyers are saying current cases and past convictions of non-disclosure should be revisited by provincial prosecutors and their attorneys general against the backdrop of the new report, which lays out various scenarios which would involve a low — or even non-existent — possibility of transmission, even if a condom is not used.

The Criminal Justice System’s Response to Non-Disclosure of HIV warns of the overcriminalization of infected people who don’t disclose their condition but are on treatment, have a low viral load and pose a “negligible” risk to a non-infected sex partner.

It goes on to classify HIV as “first and foremost a public health issue.”

After the report’s release, Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins announced they would tell their Crowns to now limit non-disclosure prosecutions, particularly in cases where the infected person “is on antiretroviral therapy” and “where an individual has a supressed viral load for six months.”

Toronto criminal lawyer Michael Lacy, a partner with Brauti Thorning Zibarras and president of the Criminal Lawyers’ Association, said the report should give “guidance” to Crown prosecutors.

“From a legal perspective, the report provides guidance that should eliminate criminal prosecution in those cases,” said Lacy. “Non-disclosure alone will not vitiate consent. Non-criminal responses are being recommended for the vast majority of cases involving public health authorities. At the same time, the report recognizes that there will be some, now hopefully limited, circumstances where the blunt instrument of the criminal law will be the appropriate way to respond to deliberately high-risk behaviour.”

Current standards used to prosecute non-disclosure cases need to catch up with evolving science, the report states.

“Sexual activity, regardless of condom use, with an HIV positive person who is taking HIV treatment as prescribed and has maintained a suppressed viral load … poses a negligible risk of transmission,” it reads.

Still, it stresses “criminal law applies to HIV-positive persons where they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of transmission.”

Criminal law, it states, should not apply to non-disclosing infected people as long as they’ve maintained a suppressed viral load of under 200 copies per millilitre of blood, and that “a person living with HIV who takes their treatment as prescribed is acting responsibly.”

Also, the law should not apply to those who are not on treatment but use condoms or to those who engage only in oral sex, “because the realistic possibility of transmission test is likely not met in these circumstances.”

Instances where risk increases, it states, includes “multiple acts of sexual intercourse,” particularly when condoms are not used, and oral sex involving ejaculation with an untreated infected partner.

It also states that “persons from marginalized backgrounds,” such as gay, Indigenous and black people, are disproportionately impacted.

Released Dec. 1, the federal paper could potentially trigger a new legal chapter in this issue.

In 2012, the Supreme Court ruled in R. v. Mabior [2012] SCC 47 that an infected person was not legally required to disclose their HIV-positive status to a sex partner if the former carried a low viral load and used a condom. But the SCC also left room for tweaking should laws need to adapt with scientific findings and shifting risk factors.

This report instructs all Crown attorneys that they need to examine the science underlying their individual prosecutions and decide whether or not it is still in the public interest to prosecute the cases, and whether or not there is still a reasonable prospect of conviction,” said Toronto lawyer Daniel Brown, head of Daniel Brown Law and author of Prosecuting and Defending Sexual Assault Offence Cases: A Practitioner’s Handbook. “Because the science has evolved so quickly and so much … our perceptions of what created a realistic possibility of transmission, even five years ago, has changed to where we’re at today, and we have to re-examine all of the cases in the court system to determine whether or not they still meet that standard.”

Provincial attorneys general should turn their eyes toward past convictions, he said.

“We can see that there was a substantial amount — not just those who were convicted after a trial — but many people who pled guilty perhaps to minimize the type of punishment that could come to them had they proceeded to a trial … and it is uncertain whether or not they pled guilty in the face of evidence that would no longer withstand scrutiny,” said Brown. “Were these cases where there was a realistic possibility of transmission, or were these cases where the law hadn’t caught up with the science?”

Alberta criminal lawyer Markham Silver also talked about revisiting non-disclosure convictions, using as an example the launching of a coroner’s inquiry into years of botched examinations by disgraced child pathologist Charles Smith.

“Realistically, the attorney general or the ministry of justice of any province can engage in reviews as they see fit,” said Silver. “When they had the situation … in Ontario with Smith … the Crown reviewed a whole rack of cases that dealt with his evidence and made determinations based on new information they had obviously received. … So it’s certainly open to the Crown to do as the Crown sees fit … in any particular provinces.”

Vancouver lawyer Troy Anderson, who recently acted in a non-disclosure case, agrees.

“If you’re looking at the science that says it is essentially no risk of HIV transmission if you are being treated and acting responsibly, then yes, I agree with that absolutely,” he said. “The prosecution services vary from province to province … [but] I think it is absolutely going to follow. I think there is will be a drop in the number of people being prosecuted for this.”

Canada: Alberta courts urged to follow Ontario example and stop prosecuting people for not disclosing their HIV status

Alberta should curb prosecutions for HIV non-disclosure

The Ontario government announced Crown attorneys will no longer prosecute certain cases of HIV-positive people who don’t disclose their status to their sexual partner.

By:  Metro Published on Mon Dec 04 2017

Advocates are urging Alberta courts to stop prosecuting HIV-positive people who don’t tell their sexual partners their status, as long as they’ve been on medication for a certain length of time.

The call comes after a federal justice department report released Friday concluded that criminal law should generally not apply to people who are on HIV treatment, are not on treatment but use condoms, or engage only in oral sex.

The Ontario government also announced Friday, which was World AIDS Day, that Crown attorneys will no longer prosecute cases of HIV-positive people who don’t disclose their status to their sexual partner when the HIV-positive person has had a suppressed viral load for six months.

Viral load refers to the amount of HIV virus in a person’s blood.

“It’s a huge step forward,” said Brook Biggin, founder of the Edmonton Men’s Health Collective and regional manager of the Community Based Research Centre for Gay Men’s Health.

“Our hope is that Alberta will make a sensible decision as well, and look at the evidence and follow suit.”

The announcement was made in response to the report, which was titled “Criminal Justice System’s Response to Non-Disclosure of HIV” and backed by analysis from the Public Health Agency of Canada.

The report found there is no realistic possibility of a person transmitting HIV if they have been on treatment and have an undetectable viral load.

Biggin said Canada is notorious for being “one of the worst countries” in terms of the number of recorded prosecutions for HIV non-disclosure.

The Canadian HIV Legal Network has recorded more than 200 prosecutions.

Because there is no specific law around non-disclosure in Canada, other laws are used to prosecute cases.

Offenders are often charged with aggravated sexual assault, with the idea being that a failure to disclose the condition invalidated consent, and that HIV could cause significant bodily harm.

Aside from often lengthy jail terms, those convicted have also faced mandatory designation as sex offenders.

“These are charges that ruin people’s lives,” Biggin said.

Veronica Jubinville, press secretary for Alberta Justice Minister Kathleen Ganley, said in an e-mailed statement that the ministry is taking the report into consideration.

“We are evaluating how this potential change could impact our courts and these types of cases in Alberta,” the statement reads.

Published in Metro News on Dec 04, 2017

Canada: Ontario decision to limit HIV criminalisation seen as a step forward but more still needs to be done

HIV-positive community says Ont. ruling is first step of long process

TORONTO — A move by the Ontario government to limit the prosecution of HIV-positive people who don’t disclose their status to sexual partners is being called a step in the right direction by those affected, but they say there’s much more progress to be made.

The government announced on Friday that people with low viral loads who don’t have a realistic chance of transmitting the disease can’t be charged with a crime if they don’t disclose their medical status to a sexual partner.

Previously, non-disclosure could lead to an aggravated sexual assault charge that landed convicted people on a sex offender list.

Ontario made the changes after studies showed that the risk of transmission is negligible if people are being treated for the disease or if appropriate precautions are taken.

Chad Clarke, 46, who served 39 months in prison for non-disclosure, said he cried when the announcement was made and said progress was being made to end what community advocates called the criminalization of HIV.

“I feel great because they’re listening to our voices,” said Clarke. “I look forward to see where we go … they just proved that you have them willing to sit down, and maybe Canada will sign on to this.”

However, advocates in the community say there are downsides to the ruling as well.

Jeff Potts, managing director of the support and advocacy group Canadian Positive People Network, said that decriminalizing only people with low viral loads means the community will be divided between people who are fortunate enough to get the medical treatment they need, and marginalized people who are not.

“At the end of the day, laws that criminalize people living with HIV for any reason, unless it can be proven there was intentional harm, are unjust,” said Potts, who has been HIV-positive for three decades.

“They don’t make sense, they don’t keep up with the science, it does nothing more than perpetuate stigma and further marginalize people who live with HIV.”

Potts said that some people will see this as a wrong step because of that division, but acknowledged that it’s important that the government has shown it understands there’s a conversation that needs to happen.

The government said Sunday it had no comment about any plans to further limit prosecution of HIV-positive people for non-disclosure.

Potts and Clarke spoke of the stigma that came with being HIV-positive and said that the fear of prosecution was “unbearable.”

Clarke, who was originally sentenced to four years in prison, says his daughter still won’t let him speak to his grandson, and said he still isn’t on speaking terms with his parents. He used to feel at home in Toronto’s Church and Wellesley neighbourhood, where there is a strong LGBTQ community, but has since moved to a small rural community because the area brings back too many bad memories

“Knowing that I’m on a national sex registry that puts me on the same category as people that actually harm children or dismember bodies when they do a sexual thing doesn’t make me feel to good,” said Clarke.

While Clarke is also calling for further changes to non-disclosure rules, he said the HIV community has to be mindful of how they carry on the fight and that they must focus on educating Canadians.

“We need to use our voices properly, hold them accountable, and educate,” said Clarke. “If we don’t educate and show them the love of this community, they’re not going to hold that door open for us no more.”

Canada: Canadian organisations issue joint statement on the federal Justice Minister report “Criminal Justice System’s Response to Non-Disclosure of HIV.”

AN IMPORTANT, MODEST ADVANCE ON WORLD AIDS DAY Federal and Ontario governments take first steps toward limiting unjust HIV criminalization, but must work with community and experts to go further The following statement is issued jointly by the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO), Canadian Positive People Network (CPPN), the Ontario Working Group on Criminal Law + HIV Exposure (CLHE), and the Canadian Coalition to Reform HIV Criminalization: December 1, 2017—

Today, after years of advocacy by community organizations, both the federal and Ontario governments have finally recognized the need to limit the “overcriminalization of HIV” in Canada. They have each taken a first step toward that end— specifically, by recognizing that a person living with HIV who has a suppressed viral load should not be criminally prosecuted, because this is at odds with the science. This morning, the federal Justice Minister released her department’s long-anticipated report, “Criminal Justice System’s Response to Non-Disclosure of HIV.”

The report contains a number of important conclusions warranting a more limited application of the criminal law than is currently the case. In particular, the report explicitly recognizes that HIV is first and foremost a public health matter, that the use of the blunt instrument of the criminal law should be a matter of last resort, that the application of the criminal law to HIV non-disclosure is likely to disproportionately affect people Indigenous, gay and Black people. The report also recognizes that it is problematic, in at least some circumstances, to use the law of sexual assault to deal with allegations of HIV non-disclosure.

Meanwhile, the Ontario Attorney-General and Minister of Health have released a joint statement confirming that “HIV should be considered with a public health lens, rather than a criminal justice one, wherever possible,” and that in light of the overwhelming scientific consensus for cases where an individual has a suppressed viral load for six months, Ontario’s Crown Prosecutors will no longer be proceeding with criminal prosecutions in such cases.

These are welcome first steps. But what is needed is deeper, broader reform. Earlier this week, the Canadian Coalition to Reform HIV Criminalization (CCRHC) released a joint Community Consensus Statement endorsed by more than 150 organizations across the country, from the HIV sector and beyond. Developed through several months of cross-country consultation, the statement shows clear consensus against the current overly broad use of the criminal law in Canada against people living with HIV and the urgent need for action from federal, provincial and territorial governments.

The Community Consensus Statement declares that, in accordance with international guidance, criminal prosecutions should be limited to cases of actual, intentional transmission of HIV. It also specifically identifies circumstances in which criminal prosecution for alleged HIV non-disclosure is clearly inappropriate. In particular, the Community Consensus Statement declares that HIV related criminal charges are not appropriate where a person living with HIV engaged in activities that, according to the best available scientific evidence, posed no significant risk of transmission, which activities include: § oral sex; § anal or vaginal sex with a condom; and § anal or vaginal sex without a condom while having a low viral load.

It is encouraging, therefore, that Justice Canada’s report recommends that the criminal law should not apply to people who have a suppressed viral load.

Furthermore, Justice Canada recommends that: The criminal law should generally not apply to persons living with HIV who: are on treatment; are not on treatment but use condoms; or, engage only in oral sex (unless other risk factors are present and the person living with HIV is aware of those risks), because the realistic possibility of transmission test is likely not met in these circumstances.

These conclusions need to be reflected in clear prosecutorial directives issued by federal and provincial Attorneys General. However, the announcement today by the Attorney General of Ontario – which province accounts for more than half the prosecutions to date in Canada – falls well short of this, as it only commits to refraining from prosecutions in cases where someone has a suppressed viral load.

These conclusions by Justice Canada should also be recognized by judges across Canada when they are called upon by prosecutors to apply the existing legal framework, under the law of sexual assault as it has been interpreted by the Supreme Court of Canada.

However, it remains that case that prosecuting HIV non-disclosure as sexual assault is misguided and damaging, not only to people living with HIV but also to the integrity of the law of sexual assault. We therefore welcome Justice Canada’s conclusion that, in the absence of intent to transmit HIV to a sexual partner, sexual offences are not appropriate.

As declared in the Community Consensus Statement released earlier this week, HIV non-disclosure must be removed from the reach of sexual assault law. We note that the Ontario Attorney General has explicitly echoed the call by the Canadian Coalition to Reform HIV Criminalization to examine potential Criminal Code reform.

Canada: Ontario will no longer prosecute people who don't disclose their HIV status if they have a suppressed viral load

Ontario to curb prosecution of HIV non-disclosure cases

Crown attorneys will not prosecute cases of HIV-positive people who do not disclose they have HIV if they have had a “suppressed” viral load, or amount of HIV, in their blood for six months.

The Ontario government announced Friday, World AIDS Day, that Crown attorneys will no longer prosecute cases of HIV-positive people who don’t disclose their status to their sexual partner when the person who is HIV-positive has had a suppressed viral load for six months.

Viral load is the amount of the HIV virus in a person’s blood.

The announcement was a response to the federal justice department’s report titled “Criminal Justice System’s Response to Non-Disclosure of HIV,” released Friday.

The report, backed by analysis from the Public Health Agency of Canada, concludes that the criminal law should generally not apply to people who are on HIV treatment (which suppresses their viral load and makes transmission unlikely), are not on treatment, but use condoms, or engage only in oral sex.

“The realistic possibility of a transmission test is likely not met in these circumstances,” the report concludes.

The federal report recognized that HIV “is first and foremost a public health issue,” and concluded that non-disclosure prosecutions disproportionately affect people who are Indigenous, gay and Black.

While the province’s announcement to limit prosecutions was seen as modest progress, a number of organizations quickly pointed out that the government should only be prosecuting cases where there was actual, intentional transmission of HIV.

Ontario has been criticized by advocates as being a world leader in unjustly prosecuting HIV-positive people, typically charging them with aggravated sexual assault for failing to disclose their HIV status to their sexual partner.

Published in the Star on Dec 1, 2017

Canada: Federal Justice Ministry releases its long-anticipated report “Criminal Justice System’s Response to Non-Disclosure of HIV

Government releases Report on the Criminality of HIV non-disclosure

News Release

From Department of Justice Canada

December 1, 2017 – Ottawa, ON – Department of Justice Canada

The Government of Canada is committed to ensuring that our criminal justice system protects Canadians, holds offenders to account, provides support to victims, meets the highest standards of equity and fairness, and respects the Canadian Charter of Rights and Freedoms.

Today, on World AIDS Day, the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, released the Department of Justice Canada’s report entitled Criminal Justice System’s Response to the Non-Disclosure of HIV. The report represents a significant step forward in raising awareness and addressing concerns about the over-criminalization of HIV non-disclosure in Canada, which can discourage testing and treatment.

The report, developed in collaboration with the Public Health Agency of Canada, reaffirms that HIV is fundamentally a public health issue. It provides a comprehensive review of the most recent medical science on the risks of HIV transmission through sexual activity and shows how the criminal law deals with cases involving the non-disclosure of HIV-positive status prior to sexual activity.

Once a fatal infection, HIV is now considered to be a manageable condition, thanks to significant medical advances in HIV treatment. Sustained treatment substantially improves quality of life and prevents the transmission of HIV.

The report examines stakeholder perspectives, approaches taken in other countries, public health responses to HIV cases, and criminal justice responses to HIV non-disclosure and draws several conclusions from this overview. Together, it informs an evidence-based approach to addressing HIV non-disclosure in the criminal justice system.

The report will provide valuable assistance to the Minister of Justice as she continues to work with her provincial and territorial counterparts on the way forward. Based on its conclusions and observations, she will be reviewing existing charging and prosecution practices leading to the possible development of prosecutorial guidelines for federal prosecutors.

Quotes

“There has been significant progress in the treatment, management and prevention of HIV infection since the first World AIDS Day observed in 1988. I am pleased to release this report today on World AIDS Day. It clearly demonstrates that our criminal justice system must adapt to better reflect this progress as well as current scientific evidence on HIV-AIDS. Our Government is taking action to help reduce the stigmatization of persons living with HIV, including undertaking an evidence-based approach to addressing HIV non-disclosure in the criminal justice system.”

The Honourable Jody Wilson-Raybould, P.C., Q.C., M.P.

Minister of Justice and Attorney General of Canada

“This report is critical to reducing HIV-related stigma in Canada. I will continue to work with my colleague, the Honourable Jody Wilson-Raybould, as well as with people living with HIV to reduce the stigma and discrimination they face, which can be barriers to prevention and treatment.”

The Honourable Ginette Petitpas Taylor, P.C., M.P.

Minister of Health‎

Quick Facts

  • Canada’s efforts to detect and treat HIV have resulted in the majority of persons living with HIV in Canada knowing their status and receiving appropriate treatment.
  • There is no HIV-specific offence in the Criminal Code. However, persons living with HIV who do not disclose their status are often charged with aggravated sexual assault because the non-disclosure is found to invalidate their partner’s consent to engaging in sexual activity in certain circumstances. This is the most serious sexual offence in the Criminal Code.
  • The criminal law applies to persons living with HIV if they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of HIV transmission.
  • As stated in the report, current research shows that sexual activity (with or without a condom) with a person living with HIV who is taking treatment as prescribed and has maintained a suppressed viral load (i.e., under 200 copies of HIV per ml of blood) poses a negligible risk of transmission. Across studies to date, there have been no confirmed cases of sexually transmitted HIV to an HIV-negative partner when the HIV-positive partner was continuously on antiretroviral therapy with sustained viral suppression.

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Canada: Over 150 Canadian organisations call on Federal Government to reform the Criminal Code

Time to act: Over 150 organizations across Canada call on Federal and Provincial Governments to end unjust criminalization of HIV

For The First Time, The HIV Community And Other Concerned Organizations Are Calling On The Federal Government To Reform The Criminal Code.

TORONTO, November 27, 2017 — With World AIDS Day just a few days away, the Canadian Coalition to Reform HIV Criminalization (CCRHC) has released a joint Community Consensus Statement endorsed by over 150 organizations across the country, from the HIV sector and beyond. Developed through several months of cross-country consultation, the statement shows clear consensus against the current overly broad use of the criminal law against people living with HIV and the urgent need for action from federal, provincial and territorial governments.

For the first time, the HIV community and other concerned organizations are calling on the federal government to reform the Criminal Code. They are also calling on federal and provincial Attorneys General to develop sound prosecutorial guidelines to prevent further miscarriages of justice, and for training of police, prosecutors and judges.

A year ago, on World AIDS Day 2016, federal Justice Minister Jody Wilson-Raybould acknowledged that the “over-criminalization of HIV non-disclosure” contributes to stigma and undermines public health, and that the criminal justice system has not caught up to the existing science. Indeed, Canadian scientists have repeatedly expressed their concern about the misuse of the criminal law.

“That was a welcome statement by the Justice Minister,” said Chad Clarke, a member of the Coalition who has spoken publicly about the toll on him and his family of being prosecuted and imprisoned. “People living with HIV in Canada continue to be singled out for prosecution and sent to jail for allegedly not disclosing their status to a sexual partner even if they have no intent to harm their partners, take precautions to protect their partner and do not transmit the virus. People are being prosecuted even when there is little or no possibility of transmission.”

After a year of study, it is time to act.

The Community Consensus Statement declares that, in accordance with international guidance, criminal prosecutions should be limited to cases of actual, intentional transmission of HIV.

“With more than 200 prosecutions to date, Canada has the third-largest total number of recorded prosecutions for alleged HIV non-disclosure in the world, and one of the highest rates of prosecution in the world. This is simply not acceptable,” said Cécile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, a member of the Coalition. “People accused of HIV non-disclosure most often face charges of aggravated sexual assault, one of the most serious charges in the Criminal Code. Conviction carries a maximum penalty of life imprisonment and mandatory designation as a sex offender. This approach has been criticized both domestically and internationally, including by United Nations expert bodies.”

“People living with HIV in Canada deserve better and demand better,” said Alex McClelland, a member of the Coalition’s steering committee and a researcher at Concordia University whose current project documents the first-hand experience of people who have faced charges for allegedly not disclosing their HIV status. “Right now, lives are being ruined by an outdated and stigmatizing approach to criminal justice.”

“We can’t ignore how the misuse of the criminal law, including sexual assault charges, is harming some of those people living with HIV who are most vulnerable,” said Muluba Habanyama, a member of the Coalition who was born with HIV. “It is time that the federal and provincial ministers of justice take action and work with stakeholders—people living with HIV, HIV organizations and service providers, women’s rights advocates and scientific experts—to limit the unjust use of criminal law which discriminates against people living with HIV.”

The Community Consensus Statement comes shortly before the UNAIDS Executive Director arrives in Ottawa for an official visit in conjunction with World AIDS Day (from November 29 – December 1). UNAIDS has previously recommended much narrower limits on the use of the criminal law than is currently the case in Canada.

The Community Consensus Statement, including the full list of endorsers, is available online.

About The Canadian Coalition To Reform HIV Criminalization

The Canadian Coalition to Reform HIV Criminalization (CCRHC) is a national coalition of people living with HIV, community organizations, lawyers, researchers and others formed in October 2016 to progressively reform discriminatory and unjust criminal and public health laws and practices that criminalize and regulate people living with HIV in relation to HIV exposure, transmission and non-disclosure in Canada. The Coalition includes individuals with lived experience of HIV criminalization, advocates and organizations from across the country. It includes a steering committee on which a majority of members are people living with HIV.

 

Malawi: Human Rights Activists celebrate adoption of amended HIV Law that removes rights-infringing provisions (Press Release)

PRESS RELEASE 28 November 2017

HUMAN RIGHTS ACTIVISTS CELEBRATE MALAWI’S ADOPTION OF AMENDED HIV LAW THAT REMOVES RIGHTS-INFRINGING PROVISIONS

Lilongwe – On Tuesday, 28 November, Malawi Members of Parliament voted to reject coercive and criminalising provisions that threatened human rights in a long-deliberated HIV (Prevention and Management) Bill.

Activists and people living with and affected by HIV celebrated outside Parliament after having protested for months against rights-infringing provisions in the HIV Bill, tabled earlier this year. The Bill, which had its origins in a 2008 Law Commission Report, included provisions to make HIV testing and treatment mandatory for select populations on a discriminatory basis, and provisions that would criminalise HIV exposure and transmission, amongst others.

Civil society and activists argued that these provisions would violate the Malawi Constitution, be at odds with international best practice, and compromise the country’s efforts to advance HIV treatment and prevention.

On Tuesday, Members of Parliament debated amendments to the Bill advanced by Members and its HIV Committee. Minister of Health, Hon. Atupele Muluzi, urged Members to endorse these amendments when adopting the Bill, emphasizing that criminalising HIV had negative public health implications. Parliament voted to support all the amendments proposed by the HIV Committee and, in addition, voted to delete a contentious provision relating to “deliberate infection” with HIV. After a second reading, the Bill was passed subject to these amendments.

Activists celebrate the passing of the amended HIV/AIDS Bill today in Lilongwe.
Activists celebrate the passing of the amended HIV Bill today in Lilongwe. (Source SALC)

“It is thanks to women activists who fought to have their voices heard that Parliament has recognised that abandoning human rights protections will only drive vulnerability to HIV,” said Sarai-Chisala Tempelhoff of the Women Lawyers Association (WLA Malawi). “When the evidence tells us women and girls should be at the forefront of our response to HIV, it is important to understand the criminalisation would only increase the risk of violence and abuse that Malawian women face; strengthen prevailing gendered inequalities in healthcare and family settings; and further drive stigma, fear and discrimination around HIV.”

“Mandatory testing and treatment and criminalization of HIV transmission and exposure are counter-productive to reaching the goals of the HIV response in Malawi. We are glad our voices have been heard through the work of organisations like ICW Malawi, the Coalition of Women Living with HIV/AIDS (COWLHA), the Female Sex Workers Association, the Women Farmers Coalition and others. Human rights have prevailed today in Malawi.” said Clara Banya of the International Community of Women Living with HIV (ICW) Malawi.

“We are elated that Parliament has chosen to endorse a law based on evidence and reason and not on stigma and fear. It is people who are most marginalized in our society who would suffer most under coercive and criminalising laws – these are people who need society’s support, not punishment.” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA).

Gift Trapence, Executive Director of the Centre for the Development of People (CEDEP), agreed, “While we urgently need to embrace key populations to advance human rights and the HIV response in Malawi, the Bill was proposing to create further barriers. While the amended version adopted by Parliament does not speak to key populations directly, we must celebrate that at least it hasn’t added to the legal barriers as initially proposed.”

MacDonald Sembereka, Executive Director of the Mango Key Populations Network said, “As actors in the sector we urge for the prompt assent and implementation of the Act as it is long overdue.”

“We commend and support the incredible advocacy of Malawian civil society and women activists in particular who have refused to be silenced into accepting compromises on punitive laws and policies,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The role of human rights in an effective HIV response is as important now as it has always been.”

“While some provisions remain that are perplexing and of which we should remain wary (such as those placing duties on people living with HIV to adhere to treatment), Parliament’s acceptance of the amendments in the Act is a victory for citizens and supporters of human rights in Malawi who resisted efforts to enact the Bill in its original form at all costs,” said Annabel Raw, health rights lawyer at the Southern Africa Litigation Centre (SALC).

Laurel Sprague, Executive Director of Global Network of People Living with HIV (GNP+) said, “GNP+ applauds the remarkable community effort that focused on education, current science and best practices. Women living with HIV, sex workers, and women lawyers led the way in explaining why punitive laws harm the HIV response and ensuring that a human rights approach is at the centre of Malawi’s HIV response.”

Statement by:

The AIDS and Rights Alliance for Southern Africa (ARASA)

The Centre for the Development of People (CEDEP)

The Centre for Human Rights Education, Advice and Assistance (CHREAA)

The Global Network of People Living with HIV (GNP+)

The International Community of Women Living with HIV (ICW) Malawi

The MANGO Key Populations Network

The Southern Africa Litigation Centre (SALC)

Women Lawyers Association, Malawi

 

ENDS

 

FOR MORE INFORMATION:

Lesley Odendal (Communications Lead, AIDS and Rights Alliance for Southern Africa) Email: communications@arasa.info; Tel: + 27 72 960 8991.

Annabel Raw (Health Rights Lawyer, Southern Africa Litigation Centre) Email: AnnabelR@salc.org.za; Tel: +27 10 596 8538.

 

 

Mexico: First Spanish language ‘HIV is Not A Crime’ meeting leads to new Network and impressive early results

In October 2017 the first Spanish-language ‘HIV Is Not A Crime’ meeting took place in Mexico City, supported by the HIV JUSTICE WORLDWIDE coalition.

The two-day meeting brought together people living with HIV, activists, lawyers, human rights defenders, and academics from across Mexico – alongside HIV JUSTICE WORLDWIDE partners CNET+ (Belize), Sero Project (USA), and the HIV Justice Network – to discuss the current state of HIV criminalisation nationally, regionally and globally.

As well as learning about HIV criminalisation around the world; the global movement to end HIV criminalisation; and the importance of the leadership of Networks of People Living with HIV, participants discussed reform initiatives in the three states where specific problematic laws exist (Veracruz) or were recently proposed (and Quintana Roo and San Luis Potosí).

In 2015, the Congress of Veracruz approved a reform of the Penal Code in order to add to the crime “of contagion” the term “sexually transmitted infections” (STI), among which are HIV and HPV, to “try to prevent the transmission of such infections, mainly to (vulnerable) women and girls.” The penalty includes six months to five years in prison and a fine of up to 50 days minimum wage for anyone who “maliciously” infects another person with an STI.

In San Luis Potosí, the governor, Juan Manuel Carreras López, proposed reforms to the Criminal Code, including the creation of article 182 bis, to punish “the person knowing that he is a carrier of a sexually transmitted disease. ..) endangers the health of another person through sexual intercourse “.  Thanks to quick action by local activists, the proposed reforms did not pass.

In Quintana Roo, last year Congresswoman Laura Beristain proposed reforming Article 113 of the Criminal Code to punish anyone who transmits HIV with up to 25 years in prison.  A few weeks ago, following a meeting with activists including those who attend the ‘HIV is not a crime meeting’, she committed to dropping the proposal.

In addition to these HIV-specific laws, the meeting heard that 30 the 32 states that make up the Mexican Republic have a public health law that sanctions exposure to sexually transmitted infections.  Only the states of Aguascalientes and San Luis Potosí do not have this law.

According to data from Letra S, at least 39 people have been prosecuted under this law between 2000 and 2016 on suspicion of having transmitted a sexual infection and / or HIV. The state with the highest number of registered cases is Veracruz, with 15; Sonora follows, with nine; Tamaulipas and State of Mexico, with five; Chihuahua, with three, and Mexico City and Nuevo León with a case.

Last year, the Veracruz Multisectoral Group on HIV / AIDS and STIs and the National Commission on Human Rights challenged the Veracruz law on unconstitutionality grounds at the Supreme Court of Justice of the Nation. The challenge was supported by HIV JUSTICE WORLDWIDE in a widely reported press conference last year.  However, the Supreme Court has yet to rule.

As a result of the meeting, the Mexican Network of organisations against the criminalisation of HIV was formed, bringing together 29 organizations from all over the country. During, and immediately following the meeting, the Network drafted an 11-point Declaration addressed to various governmental agencies in charge of responding to the epidemic, as well as to society in general.

Among the key points in the Declaration, they note that the Mexican State is required to assume the commitment to guarantee an integrated response to HIV (prevention, timely diagnosis and comprehensive attention) and stresses that it is not the task of the judicial authorities to develop and implement measures to prevent transmission of HIV.

The declaration also emphasises that the criminalisation of HIV exposure through “risk or danger of HIV infection” and other public health statutes that appear in the laws of individual Mexican states are generating more harm than good in terms of impact on public health, in addition to preventing the guarantee of respect for the human rights of people with HIV.

With two weeks of the meeting, Network representatives met with Congresswoman Laura Beristain, who had proposed the new unjust, overly broad HIV criminal law in Quintana Roo. She listened to their arguments, read the Declaration, and immediately gave a firm commitment to repeal Quintana Roo’s problematic provisions in Article 113.

Watch and share short video below about the meeting and the Network’s immediate advocacy win.

UK: Professor Matthew Weait reflects on the first convictions for intentional HIV transmission in England & Wales

Daryll Rowe guilty – but is criminal law the right way to stop the spread of HIV?

Daryll Rowe infected five male sexual partners with HIV, and tried unsuccessfully to infect a further five. Yesterday, he was convicted in the Crown Court at Lewes on ten counts of causing, and attempting to cause, grievous bodily harm. He will be sentenced in January.

This is the first case in the UK in which a person has been convicted of intentionally harming, or attempting to harm, others with HIV – prior to this, all UK convictions have been for reckless transmission. It is a uniquely harrowing and distressing case, and the impact of Rowe’s actions on the complainants cannot be underestimated.

Unsurprisingly, the trial has provoked much media comment, and his behaviour widespread condemnation – the details of Rowe’s actions, after all, are particularly shocking.

But whatever judgement we might pass on Rowe’s behaviour from a moral or ethical perspective, the criminalisation of HIV transmission and exposure more generally raises a number of important questions, not least regarding its impact on HIV-related stigma and efforts to reduce, and ultimately eradicate, the virus.

Ever since its discovery as the causative agent of AIDS in 1983, countries across the world have used the criminal law, both to censure those who have exposed others to the risk of infection or have in fact infected others, to control the spread of the virus.

The first of these rationales, a retributive one, reflected the fact that, until the mid-1990s, HIV was untreatable and almost inevitably led to death. It is therefore not surprising that states should have treated HIV as a weapon, and its effects as serious bodily harm.

The second rationale, a deterrent one, assumes that punishment will deter the accused – and others – from engaging in risky activity. It therefore has a supposed legitimacy from a public health perspective.

Both of these justifications are problematic.

The false path

Regarding retribution, criminal law requires that the defendant manifest a high degree of fault at the time – typically, that he acted intentionally, as Rowe did, or recklessly. As to intention, this can be established in English law and many other jurisdictions if (a) it is proven that it was the defendant’s purpose to infect, or (b) it may (but need not) be inferred if infection was virtually certain to occur, and the defendant foresaw that consequence as virtually certain.

Proving purposive intention is extremely difficult – a deliberate intention to engage in sexual activity which carries with it the risk of onward transmission is not the same as intending to transmit. It is also very difficult, in the case of HIV, to establish intention in the alternative way because, as has been confirmed in a number of clinical consensus statements, from Canada, Australia, and Sweden, the probability of transmission in any one incident of sexual intercourse is extremely low.

What’s more, where a deliberate (but unsuccessful) attempt to transmit HIV during sex is prosecuted, is it legitimate to punish someone for failing to achieve a consequence which is, statistically speaking, extremely unlikely to materialise? Critically, in the case of HIV, the accused is unable, as a matter of fact, to exercise agency over the outcome. (There is arguably a difference between swinging a bat at someone’s knee and missing, and having sex during which a virus may, but on any one occasion probably won’t, infect a partner.)

Recklessness (the conscious taking of an unjustifiable risk), however, is a lesser form of culpability. It is easier to prove, and a far more common basis for criminalisation. Until now, reckless transmission has been the basis for all UK convictions.

Rowe was found guilty of intentionally harming, or attempting to harm, others with HIV. But criminalising reckless transmission is particularly problematic. From a retributive perspective, this amounts to punishing people living with HIV who have sex during which HIV is transmitted, not because they had any desire that this should happen but because they were aware that it might. This places the entire burden of minimising the risk on them (even in cases where a partner is in fact aware of the risks), and is even more problematic where reckless exposure (as opposed to transmission) is criminalised.

This is not just because no physical harm has been caused, but because there is an absence of clarity as to what degree of risk is acceptable. In Canada, for example, there needs to be a “significant risk”, though what this means is contentious. It is now widely accepted that when a person diagnosed with HIV is on effective treatment and has an undetectable viral load, transmission is all but impossible. In the words of a current, high-profile, campaign to encourage testing and treatment, Undetectable = Untransmittable, or U=U.

A deterrent?

Criminalisation can also create obstacles to delivering beneficial public health outcomes.

First, because a person living with HIV can only be convicted for transmission, attempt, or exposure if he knew his HIV positive status at the relevant time, those who are in fact positive but don’t know can’t, by definition, be deterred by the prospect of punishment.

Second, and critically, criminalisation contributes to the stigma associated with HIV infection. Sensationalist press coverage, focusing on exceptional “newsworthy” cases, does little if anything to normalise HIV infection or to inform the general public about the fact that the vast majority of people living with HIV take every precaution against putting partners at risk. Instead, it fuels ignorance and misunderstanding.

Indeed, the print media in the UK and elsewhere has a long tradition of sensationalising HIV transmission and exposure cases, often at the expense of accurate reporting – whether about the trials themselves, or about the characteristics of those convicted.

This may make people wary of disclosing their status to partners, adhering to treatment, or getting tested in the first place.

Indeed, there is now near universal consensus among expert bodies, including UNAIDS and the Global Commission on HIV and the Law, that the use of the criminal law, where it is used at all, should be limited to the most egregious of cases and that exposure and reckless transmission should be decriminalised. Where states do use criminal law against those who deliberately and maliciously harm others, the highest standards of forensic evidence should be deployed.

Any moral judgement we pass on defendants in particular cases (who, it is worth remembering, were themselves infected by someone else) should not deflect attention from what must be our main priority: the total eradication of HIV.

We know definitively that regular testing and early treatment can significantly reduce the number of new infections, and we know that stigma, fuelled by criminalisation and press coverage, impedes this.

Rowe’s behaviour was found to be criminal. But we should reflect on whether criminal law – in general – does more harm than good, and ensure wherever, and whenever, possible that HIV is understood and treated as a public health priority rather than as an opportunity for blame and punishment.