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.

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.

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.

Anti-Homosexuality Bill retains 'aggravated homosexuality' provision for men with HIV

Botswana Network on Ethics, Law and HIV/AIDS highlights problematic HIV provisions in "counter-productive, discriminatory, unconstitutional and barbaric" Public Health Bill

The Botswana Network on Ethics, Law and HIV/AIDS (BONELA), is shocked by the introduction of a Public Health Bill which our Parliament is currently debating. This Bill has some provisions that have no place in a democratic and modern day Botswana. It has provisions that are counter-productive, discriminatory, unconstitutional and barbaric.

Activists fight parts of Uganda's HIV/AIDS bill, including mandatory testing & disclosure plus a 'wilful transmission' statute, tabled for Jan 2013

According to Dr. Jeremiah Twa- Twa, chairperson HIV/AIDS sectoral committee, the HIV/AIDS prevention and control bill, aimed at protecting people and creating a conducive legal environment for the implementation of HIV/AIDS programmes in Uganda, will be finalised before the end of the session, most likely in January next year.

However, the bill has thrown a cat among dogs, especially the civil society and AIDS activists who have rejected some of the proposed sections, saying they undermine many critical issues. Led by Uganda Network on Law, Ethics and HIV/AIDS (UGANET) and the National Forum of People Living with HIV/AIDS Network in Uganda (NAFOPHANU), the activists demand that some clauses be revised. They, however, say it is a good law with good intentions, but also warn that it may have devastating effects.

The joint civil society coalition, made up of more than 40 organisations, including human rights groups, has urged Parliament to review the clauses on mandatory testing of HIV, mandatory disclosure of a person’s HIV status and the criminalisation of intentional spread of the disease. The bill, calls for mandatory HIV testing of pregnant women and their partners during antenatal visits. Most men do not accompany their wives for antenatal visits and those who do so rarely accept to be tested for HIV. If the bill passes into law, all men who are responsible for a pregnancy may be compelled to test for HIV.

Germany: Saxony-Anhalt considers forced HIV testing following potential occupational exposure of first reponders http:
t.co/Pe9OqY3U

China: Lawyer proposes making 'intentional HIV transmission' a crime

In the Chinese legal system, it is a crime to intentionally spread sexual transmitted diseases through prostitution, but this does not apply in a marriage or an ordinary relationship. Yang Shaogang, a Shanghai lawyer and advisor to the local government, is among those legal experts who propose legislation to make the intentional transmission of HIV/AIDS a crime, as it already is in many countries. Yang has taken on two cases where wives sued their ex-husbands, who were HIV positive, for infecting them. The court ruled in favor of the wives in both cases. Yang believes concealing one’s illness and infecting others should be a criminal offense. Some provinces such as Yunnan and Gansu have also passed measures to mandate that carriers inform their partners within a month of getting the test results or else the health authorities would. Such policies have been heavily criticized for violating patients’ right to privacy.

Alert over new HIV criminalisation laws in Dominican Republic, Ecuador, El Salvador and Nicaragua

Alliance Linking Organisations in Latin America and the Caribbean, along with their strategic partners REDLACTRANS and RedTraSex, have used the occasion of World AIDS Day 2012 to sound a warning about the impact of criminal law being applied to those who transmit or expose others to HIV infection. In the last year alone, the governments of the Dominican Republic, Nicaragua, El Salvador and Ecuador issued new laws or reformed existing ones that criminalise HIV transmission.