PHOENIX – A House Democrat wants to make it a felony to intentionally expose others to HIV and other sexually transmitted diseases such as gonorrhea, chlamydia or syphilis. “If you know you’re infectious, you should not be spreading that around no matter what the motivation is,” said Rep. Lela Alston, D-Phoenix.
Switzerland: New Law on Epidemics delayed due to referendum, change in HIV law still likely
The road to law reform can be long and rocky, especially in a direct democracy like Switzerland. The proposed changes (for the better) to a law that has been used to prosecute people with HIV for potential exposure even when their partner consented to unprotected sex, and/or when there was no risk, first agreed upon last March will now be put to a popular vote.
The revised Law on Epidemics will only criminalise the intentional spread of a communicable disease.
Last week, the initiative committee for a referendum on the new Law on Epidemics brought to the Federal Chancellery over 80,000 signatures from Swiss citizens unhappy with the law.
According to my sources in Switzerland, the public debate has not been about the change in the law relating to prosecutions for HIV exposure or transmission. In fact, the majority of political parties, the government, all the health institutions, and all the Cantons favour the new law.
Rather, the referendum demand was a result of strong opinions over those parts of the law dealing with mandatory vaccinations and sex education in schools.
The date for the referendum is not yet clear, although it is possible that it will take place before the end of 2013. Last November, the same group behind this referendum forced a similar vote on the new law on animal medicine and lost by a large majority (68%), which is encouraging.
Another encouraging sign is that earlier this month, the German-language Tages Anzeiger (Daily Gazette) published a broadly positive article explaining the changes in the law that relate to HIV. I have (unofficially) translated the into English, and it is reproduced below.
The federal government plans to decriminalise the transmission of AIDS
Claudia Blumer, Daily Gazette, 01/11/2013
Switzerland treats HIV-positive people who infect a sexual partner especially harshly. Following international criticism, it will change the criminal code.
Today someone who negligently, willfully or maliciously infects someone with the AIDS virus is punished by up to five years in prison. In the future only transmission of the virus with “malice aforethought” will punishable. The terms “willfully” and “negligently” have been deleted from the revised Law on Epidemics, which includes an amendment to Article 231 of the the Criminal Code. The law was supposed to come into force in early 2013. Due to the referendum, voters are now expected to decide in June.
Parliament adopted the Law on Epidemics in the autumn of 2012. The change in the criminal code was a resul of long debate in the lower houses. Senator Urs Schwaller (CDP) explains why he agreed to change the provision only to “malice aforethought”: “The offender, in this case, would have acted with intent to harm. If they had merely been negligent, this could be prosecuted under general criminal statutes for personal injury. ”
A relaxation of the criminal law also makes sense for preventive-medical reasons, notes Ticino MP Dr Ignazio Cassis (FDP). According to current scientific knowledge prosecuting HIV-positive people is counter-productive because it stigmatises the disease and those affected by it. This may result in greater harm to public health if we do not dare speak openly about the disease. “The general sense of justice collides at this point with the pragmatic preventive medical approach,” says Cassis.
36 convictions since 1990
The Swiss law on HIV transmission has become more restrictive over the past 20 years. At the beginning of the 90s, Article 231 – which covers the spread of disease – was used for the first time in connection with AIDS. Since then, according to Aids-Hilfe Switzerland, there have been 36 guilty verdicts based on actual or attempted transmission of HIV through sexual contact. A federal court ruling from 2008 states that an HIV-positive person can be punished even if they knew nothing of their infection.
The number of convictions in relation to the number of HIV-positive people is higher in Switzerland than in most other European countries. In this country, sometimes even people living with HIV have been punished even if the unprotected sexual intercourse took place with the partner’s full knowledge and consent to the risk of infection, or when no one was infected, or if the HIV-positive person was rendered uninfectious by antiretroviral therapy. The reason for the legal interest is because Article 231 is about “public health”: it does not protect individual interests, but those of the community. The consent of the partner therefore doesn’t protect the HIV-positive person from prosecution. Neighbouring European countries apply laws relating to personal injury or death, resulting in fewer convictions. But many countries are in the process of revising their criminal provisions, says Marcel Niggli, professor of criminal law at the University of Freiburg. The trend is towards decriminalisation.
Laws easing “overdue”
The Swiss law on HIV transmission has been repeatedly criticized by international organisations. However, Switzerland has not been put under political pressure, says Ignazio Cassis. Yet he has heard informal criticism from abroad, for example, at international AIDS conferences. He has been exposed to, among other things, calls from UNAIDS, an agency of the United Nations, for the decriminalization of HIV transmission. In a position paper it calls on governments not to create HIV-specific laws. Switzerland has also been criticized by the UN Human Rights Council. As part of the Universal Periodic Review it criticized Switzerland in an October 2012 report, for punishing HIV-positive people regardless of the specific situation. This is contrary to the prevention strategies. The criminalization of HIV transmission is ineffective and causes only the stigmatization of those affected.
The amendment was not informed by the Federal Health Office, or by a long-standing demand by the Federal Commission for Sexual Health and Aids-Hilfe Switzerland Switzerland. Federal Commission for Sexual Health President Pietro Vernazza has said that the decriminalization of unprotected sex for people with HIV has been overdue since the late Nineties, especially if they were successfully treated with antiretroviral therapy: “Studies have proven the effectiveness of the therapy. During treatment, an HIV-positive is not contagious.”
Norway: National Association of People Living with HIV responds to Norwegian Law Commission report
Yesterday was the deadline for written responses to the Norwegian Law Commission report which shocked and disappointed HIV and human rights advocates in Norway and around the world on its release last October.
After spending almost two years examining every aspect of the use of the criminal law to punish and regulate people with communicable diseases (with a specific focus on HIV) the Commission recommended that Norway continues to essentially criminalise all unprotected sex by people living with HIV regardless of the actual risk of HIV exposure and regardless of whether or not there was intent to harm. The only defence written into the new draft law is for the HIV-negative partner to give full and informed consent to unprotected sex that is witnessed by a healthcare professional.
Since then, Professor Matthew Weait has published Some Reflections on Norway’s Law Commission Report on Criminal Law and the Transmission of Disease on his blog highlighting some of problems with the arguments used in the report.
We have also published an interview with Kim Fangen, the only member of the Commission to vote against the use of a specific law to control and punish people with HIV and other sexually transmitted infections, which presented an alternative vision.
Today, we publish the English translation of the written response by Nye Pluss, the Norwegian national association of people living with HIV.
The organisation found that, overall, the report has three key weaknesses:
• It does not take into account the formidable global challenges related to HIV and AIDS and is not consistent with the international responsibilities that Norway has to follow-up recommendations that have come from a variety of organisations, including UNAIDS.
• It does not take into account the medical advances that have taken place in the HIV field over the past few years., in particular that HIV treatment is, in fact, now prevention, and that testing and treatment (“treatment as prevention”) is one of the most important preventive measures to combat the global HIV epidemic.
• It does not acknowledge that HIV criminalisation will help to prevent effective contact tracing and counselling, and thus influence the HIV response in the wrong direction. A desire for the use of punishment is, therefore, at the expense of public health.
Nye Pluss recommends that the Government and Parliament reject the choice of the majority’s conclusions in this area and remove the particular provisions of the Criminal Code.
The HIV Justice Network fully supports their arguments and conclusions and hopes that Norways parliamentarians follow the lead of Labour’s Håkon Haugli and The Conservative Party’s Bent Høie who came out against any specific law last July.
Below is the English translation of the Nye Pluss response, shortened and paraphrased in some areas, but with their full agreement and permission. The original Norwegian version can be read here.
Nye Pluss’s board has read and discussed the Norwegian report. Our perspective is that, as people living with HIV, all aspects of Norwegian HIV policies, including any special penal provision, must have the net result of fewer new infections. Our primary perspective is therefore one of public health.
We have found that, overall, this report has three key weaknesses:
• It does not take into account the formidable global challenges related to HIV and AIDS and is not consistent with the international responsibilities that Norway has to follow-up recommendations that have come from a variety of organisations, including UNAIDS.
• It does not take into account the medical advances that have taken place in the HIV field over the past few years., in particular that HIV treatment is, in fact, now prevention, and that testing and treatment (“treatment as prevention”) is one of the most important preventive measures to combat the global HIV epidemic.
• It does not acknowledge that HIV criminalisation will help to prevent effective contact tracing and counselling, and thus influence the HIV response in the wrong direction. A desire for the use of punishment is, therefore, at the expense of public health.
Below, we elaborate our views on these three objections.
Norway’s international responsibility in the fight against HIV
The fight against HIV and AIDS is one of the biggest challenges we face in the world: two million die every year due to AIDS-related illnesses. Around 35 million people live with HIV globally. Nearly three million are newly infected with HIV each year. Norwegian authorities have a responsibility to contribute to the international HIV response. We therefore believe that the discussion on penalising HIV exposure or transmission in Norway must be seen in relation to the international challenges we face. This report does not live up to those challenges.
At page 184 the report states:
“UNAIDS ‘work is global, but is mainly aimed at countries where the prevalence of HIV and AIDS is high. UNAIDS has no European office, such as WHO and recommendations etc. have a global objectives and are hardly suitable for Scandinavian or European conditions. The committee’s review will be largely based on our cultural context, which can be very different from the global.”
It therefore concludes that UNAIDS’ work and recommendations specifically relating to criminal laws are not relevant for Norway, while Norwegian authorities support UNAIDS efforts globally. This is, in our opinion, a somewhat arrogant and culturally discriminatory attitude to the situation in other countries. Although Norwegian law is only applicable in Norway, we expect that Norwegian laws at home should also follow, and are not contrary to, the beliefs and policies that we export to other countries in the world.
“Treatment as prevention” – a medical breakthrough in the fight against HIV
A medical breakthrough took place when the first effective HIV medicines appeared in 1996. In countries where there was good access to these medicines, the number of AIDS-related deaths fell quickly and drastically. Treatment as prevention is, perhaps, just as big a breakthrough – we now know that effective HIV medication prevents new HIV infections. New research shows that the risk of infection is reduced by 96%, more than any other prevention method.
[Several paragraphs discuss international policy relating to ‘treatment as prevention’….]
Nye Pluss notes with surprise that the report only once refers to “treatment as prevention” and even then in a way that gives the impression that the authors of this section have not acquired up-to-date knowledge of the issue. It is regrettable that such an important resource which claims to provide a basis for Parliament to examine Norwegian HIV policy in a holistic context – not least relating to the criminal law – treats such an important part of international HIV policy so superficially. We believe that it is a serious academic failure not to discuss the effects of punitive sanctions on earlier testing and treatment.
Criminal law regulation of serious infectious diseases – an obstacle in the fight against HIV
HIV criminalisation has been a growing problem in many countries around the world in recent years. Criminalisation helps to maintain stigma and prevent openness about HIV, and is thus an unwanted obstacle in HIV treatment and prevention. In addition, HIV criminalisation in many countries works to suppress women and minority groups that are particularly vulnerable to HIV.
Nye Pluss believes that the criminalisation of HIV exposure and transmission has been a barrier to effective HIV prevention in Norway. In some groups, annual HIV figures have tripled over the last ten years, compared with the previous decade.
A future, efficient Norwegian HIV policy will depend on effective and efficient testing, counselling, contact tracing and treatment, such as a “treatment as prevention” strategy. Effective testing of affected populations, effective tracing of possible infected sexual partners and effective treatment is, along with condoms and awareness, cornerstones of reducing new infections in Norway.
For those of us living with HIV, it is important that a future Norwegian strategy is successful, so that fewer people acquire HIV in Norway….One such major obstacle to achieve reduced infection figures is the criminalisation of HIV through a special provision in the Criminal Code, as advocated by the majority of the committee behind the report.
In the pharmaceutical industry….the manufacturer must show that the drug’s harmful effects do not exceed its positive effects… Surely it is possible that an HIV law will negatively impact vulnerable groups of people with HIV who have immigrated from countries with non-democratic regimes, who are more likely to go underground if there are threats of punitive sanctions, so that testing, disclosure, contact tracing, treatment and counselling is not available to them? Nye Pluss consider it obvious that there exists such a legitimate doubt and that this is precisely one of the reasons that some MPs have requested a separate investigation of the criminal law as it relates to HIV. “It is therefore surprising that the majority of the commission’s members argue, without any scientific evidence, that there would be no negative impact to an HIV law.”
Moreover, many members of the committee suggest that “decriminalization could be perceived as a signal that infecting others or exposing others to infection, is no longer a serious matter”(page 248). This is an unscientific, tautological statement based on the completely undocumented assumption that because HIV exposure and transmission is criminalised in Norway it has worked as a prevention tool, and that decriminalising it would lead to more infections, despite a lack of any evidence supporting this.
Nye Pluss believes the committee majority here are completely wrong, and we can refer to international research studies that support this.
[A summary of studies from Canada (O’Byrne, 2012), the US (Sero, 2012), Scotland (Bird and Leigh-Brown, 2001), and England (Whitlock, Warwick et al, 2010) showing a negative impact of HIV criminalisation follows.]
Nye Pluss finds it surprising that the majority of the Committee does not seem to be familiar with the research that has been done in recent years which shows that HIV criminalisation has unique negative impacts on willingness to test, to disclose to sexual partners, and in the creation of uncertainty amongst health care workers and counsellors. This somewhat surprising rejection of the existence of such research and thus a lack of discussion of such readily available research, weakens, in Nye Pluss’s perception, a range of the majority’s conclusions on the importance of the criminal law’s impact on public health: not to discuss the importance of documented research in this area is a serious mistake and results in the majority’s conclusions on public health failing in crucial ways.
Another key point of the debate around a penalty provision for people with HIV is the growth we have seen in HIV figures among particularly vulnerable groups, such as men who have sex with men, over the last ten years…The extremely serious issue that is raised is whether the relatively large number of prosecutions over the past decade has affected HIV testing behaviour, thus increasing the number of untreated individuals, resulting in more new infections.
It is a serious public health issue when there is a tripling of HIV infection among men who have sex with men for the last ten years in Norway. We are in absolutely no doubt that public health has not benefitted from the use of the Penal Code, and are of the opinion that the studies and analyses conducted to date, and as mentioned above, show with great clarity that the increased number of criminal trials over the last decade have impacted Norwegian society and public health in an extremely negative way. Nye Pluss cannot see that the Criminal Code’s provisions against HIV, which the majority recommend, will result in fewer HIV cases.
Nye Pluss believes that the latest scientific advances pertaining to HIV treatment and prevention will do perfectly well by themselves without assistance from the criminal law, including those few cases where restrictive measures for infection control law would be needed against an individual.
Conclusions
Nye Pluss believes that the Committee’s recommendations to maintain the criminal regulation of HIV exposure and transmission and other general dangerous diseases, would undermine Norway’s international responsibility to participate in a common front to combat HIV in the world.
We must recognise that since 100% safe sex is not possible it would be impractical to allow the courts to put a specific limit on what is punishable in a world where sex is a universal activity for the continuation of humanity … To punish a select few who have not mastered ‘safer sex’ – defined narrowly as condom use – is neither a fair or an effective tool in this fight, but rather the opposite.
No matter where you draw the line regarding what is, or is not, a criminal offense, a specific penal code criminalising HIV exposure and transmission will prevent effective prevention, early testing, contact tracing, treatment and counselling, and will put a spoke in the wheels of the “treatment as prevention” strategy that promises to be the breakthrough in the fight against HIV. That the criminal law should be both an obstacle to international responsibility and to effective measures for domestic public health in this area is unacceptable for society.
Nye Pluss recommends that the Government and Parliament reject the choice of the majority’s conclusions in this area and remove the particular provisions of the Criminal Code.
Guangdong Province to bar HIV-positive teachers despite China's non-discrimination law
People diagnosed HIV-positive are to be barred from becoming teachers in Guangdong Province, according to a draft regulation issued by the provincial education department on Sunday. The draft stipulates that people who are HIV-positive, and those who have other infectious diseases like hepatitis and venereal diseases, cannot be certified as a teacher, which would contravene national laws that state employers can not discriminate against HIV/AIDS carriers, an activist told the Global Times Monday.
Judge Orders Alabama to Stop Segregation of HIV Prisoners in Alabama
Decision from ACLU Lawsuit Paves Way for HIV Prisoners to Have Access to Services, Classes and Training Available to Other Prisoners FOR IMMEDIATE RELEASE CONTACT: (212) 549-2666; media@aclu.org MONTGOMERY, Ala. — A federal judge today ordered Alabama to stop segregating prisoners living with HIV, ruling that the practice violates the Americans with Disabilities Act (ADA).
Australian Government buries report on laws and policies that negatively impact the HIV response, including HIV criminalisation
Federal Health Minister Tanya Plibersek has refused to release a report which HIV advocates and health professionals say is vital to meeting a target to reduce HIV infections in Australia. The report is the result of three years of work by a Ministerial Advisory Committee set up to examine legal issues, discrimination and stigma in different states arising from laws such as criminalisation of non-disclosure of a person’s HIV status. The report, which has the lengthy title of the Ministerial Advisory Committee on Blood Borne Viruses and STIs (MACBBVS) Legal Working Group Report, was finalised earlier this year and sent to the minister for final consideration.
Uganda: Government plans forced HIV testing, mandatory disclosure, 'knowing' transmission prosecutions
National In Summary However, if implemented, the new policy is likely to face strong opposition from civil society and human rights groups. Anyone who visits a health centre or hospital for treatment will be required to undergo an HIV test if Health Ministry officials get approval for a new plan.
UK: Sentencing guidelines for grievous bodily harm discussed in Guardian article about changes to sex offender sentencing guidance
Changes are in the pipeline for the sentencing of sex offenders. But what principles govern how long a criminal is jailed for? To take one category of offence, assaults involving grievous bodily harm, there are nine steps that must be followed. The first two are the most important. Step one weighs up how serious the offence is by measuring the harm done and the culpability of the offender. Greater harm is indicated by “serious” injury to the victim, a sustained or repeated attack and the personal circumstances of the victim. But the definition of serious injury is again fundamentally contentious. Culpability is governed by another 15 factors, including premeditation, use of a weapon, or having taken on the leading role in a gang. The 19 factors, in total, put the offence into one of three categories of seriousness.
Step two sets out the range of any jail sentence. Depending on the category of seriousness, a sentence will range from 9-16 years, 5-9 years, or for the least harm and culpability 3-5. Steps three to nine look at mitigating factors, reduction for guilty pleas and a range of other technical issues. The 27 pages of assault guidelines on their own have the potential to baffle even a hardy layman. “I have the greatest sympathy with the public,” says Sir Louis Blom-Cooper, a QC and legal academic. “The system for sentencing is immensely complicated even for judges.”
Botswana: Proposed Public Health Bill goes against HIV programming best practice
Guest blog by Christine Stegling, Associate Director, Best Practice, and Senior Human Rights Adviser, International HIV/AIDS Alliance.
Reposted with permission from the International HIV/AIDS Alliance.
Late last week, and by all accounts with no previous public debate or discussion with relevant civil society representatives, a new public health bill was debated in Botswana’s parliament that surprised and shocked many activists. According to the Alliance’s Linking Organisation in the country, Botswana Network on Ethics, Law and HIV/AIDS (BONELA), this bill did not pass through the prescribed channels of consultation which would allow those most affected, such as people living with HIV and medical practitioners, to fully understand the rationale for the bill and to participate in shaping any kind of law reform.
The bill makes provisions that go against all better knowledge of a best practice approach to HIV programming based on the respect of human rights and leading to positive public health outcomes for all. For example it provides for non-consensual HIV testing, HIV testing without the knowledge of the patient and the possibility for doctors and dentists to require an HIV test before undergoing medical or dental procedures. It also proposes that people living with HIV inform any sexual partner or care givers of their status, regardless of the actual risk of transmission.
While some of the latter provisions are undoubtedly aimed at reducing the risk of future HIV infections, the bill as it stands undermines public health efforts to encourage people to learn about their HIV status and puts a disproportionate responsibility on people living with HIV. Some provisions in the current bill are a positive step however: outlawing pre-employment HIV testing and allowing young people from the age of 16 to receive an HIV test without parental consent. In particular, the clause on non-discrimination in the work place has been a long standing demand by civil society and will, I am sure, be welcomed by many in Botswana.
More could be said about the bill and surely Botswana civil society will be making their voices heard in parliament and in the media. But what is most frustrating is that for all the laudable efforts by the government to devise a national HIV programme based on support, openness and availability of services (including anti-retroviral treatment), Botswana has consistently failed to create an enabling legal environment that supports human rights and ensures non-discrimination of people living with HIV.
The National AIDS Council (NAC) of Botswana received a comprehensive report on HIV and the law as far back as 2005. I was a member of the council at the time and still have vivid memories of the lengthy debates about necessary law reform that would help to remove some of the barriers to an effective HIV response. But the report was never acted on. Seven years later, a poorly drafted piece of legislation is being debated in parliament that will undermine a response based on respect, dignity and openness.
Last week in the UK, the Global Commission on HIV and the Law launched its report presenting a coherent and compelling evidence base on human rights and legal issues relating to HIV. Former president of Botswana and long serving chair of the Botswana National AIDS Council, Festus Mogae, was one of the high profile commissioners involved in the report. It is disheartening to think that such an ill informed and badly formulated bill is now being debated in Botswana under his watch and one can only hope that his political influence and wisdom will prevent it from being passed.
This recent episode is just another example of how the law is often not used to promote a legal environment that supports access to HIV services but rather creates an atmosphere of distrust and persecution, fuelled by stigmatising attitudes against people living with HIV. It is sad to think that 30 years into the epidemic we have still not embraced a culture of equity, empowerment and support. Debates such as the current one in Botswana’s parliament also remind us about the urgent need to continue supporting civil society even in relatively well resourced countries in order for them to play the watch dog role that is so desperately needed and to ensure that the public is given the democratic space to critically examine law reform processes.
What is needed is not more well meaning rhetoric about the importance of human rights at international level, but rather support to those on the ground that hold political actors accountable to translate such rhetoric into reality and in the best interest of those with less influence and voice.
Reagan AIDS Commission member, Dr Colleen Conway-Welch, recommends modernisation of US HIV-specific laws
“Most of the criminal laws were put into place in the early 90s because people were scared, and it would make sense to recommend that they go back,” said Dr Colleen Conway-Welch in a phone interview with The American Independent. “In medicine now, there is a real push for evidence-based interventions, and I think that for those laws that were not evidence-based, I think it would be time to go back.”
Conway-Welch’s statements are being received with praise by anti-criminalization advocates. Rep. Barbara Lee (D-Calif.) — who has sponsored legislation that would encourage reform of state and federal HIV policies — said: “I’m very please she has taken this bold step to join us. It is a very important step. I look forward to working with her.”