Press Conference (AIDS 2012)

HIV Criminalization – An Epidemic Of Ignorance?

Laws and prosecutions that single out people with living with HIV are ineffective, counterproductive and unjust.

As delegates from around the world met in Washington DC at AIDS 2012 to discuss how to “end AIDS” through the application of the latest scientific advances, this press conference highlighted how laws and policies based on stigma and ignorance are not only creating major barriers to prevention, testing, care and treatment, but also seriously violating the human rights of people living with HIV.

Hosted by (in alphabetical order): The Center for HIV Law & Policy / Positive Justice Project, United States; Global Network of People Living with HIV (GNP+), Netherlands; HIV Justice Network, United Kingdom/Germany; INA (Maori, Indigenous & South Pacific) HIV/AIDS Foundation, New Zealand; The SERO Project, United States; Terrence Higgins Trust, United Kingdom; UNAIDS, Switzerland.

Chaired by Paul de Lay, Deputy Executive Director, UNAIDS, Switzerland

Speakers:

– Nick Rhoades, HIV criminalization survivor, United States [from 03:28]
– Marama Pala, former complainant, New Zealand [from 09:15]
– Edwin J Bernard, Co-ordinator, HIV Justice Network/Consultant, GNP+ [from 14:35]
– Laurel Sprague, Research Director – SERO, United States [from 23:15]
– Lisa Fager Bediako, Congressional Black Caucus Foundation/ Positive Justice Project, United States [from 33:10]

Video produced by Nicholas Feustel, georgetownmedia.de, for the HIV Justice Network

HIV prosecutions: global ranking (AIDS 2012)

Presented by Edwin J Bernard at 19th International AIDS Conference, Washington DC, July 22-27, 2012.

Video produced by Nicholas Feustel, georgetownmedia.de, for the HIV Justice Network

Introduction by Susan Timberlake [00:00]
Introduction by Laurel Sprague [01:54]
Start of Edwin J Bernard’s presentation [03:33]
Slide 01: Overview [04:40]
Slide 02: Global Commission on HIV and the Law [05:19]
Slide 03: Case Study: Take a Test, Risk Arrest [05:21]
Slide 04: Global Overview of Laws and Prosecutions [08:29]
Slide 05: Law Enforcement: Top 30 Jurisdictions [09:47]
Slide 06: Law Enforcement Hot Spots [10:58]
Slide 07: Top 15 Global HIV Criminalization Hot Spots [11:19]
Slide 08: Focus On Africa [12:09]
Slide 09: Focus On Africa: Positive Developments [13:08]
Slide 10: Focus On Europe and Central Asia [14:10]
Slide 11: Focus On Europe and Central Africa: Positive Developments [15:18]
Slide 12: Oslo Declaration on HIV Criminalisation [17:45]

Updated abstract based on final data

Criminal prosecutions for HIV non-disclosure, exposure and transmission: overview and updated global ranking

E.J. Bernard (HIV Justice Network, Berlin, Germany/ Criminal HIV Transmission (blog), Brighton, UK)
M. Nyambe (Global Network of People Living with HIV, GNP+, Amsterdam, Netherlands)

Background: Many jurisdictions continue to inappropriately prosecute people living with HIV (PLHIV) for non-disclosure of HIV-positive status, alleged exposure and non-intentional transmission. Although most HIV-related criminal cases are framed by prosecutors and the media as being cases of ´deliberate´ HIV transmission, the vast majority have involved neither malicious intent nor has transmission actually occurred or the route of transmission been adequately proven.

Methods: This global overview of HIV-related criminal laws and prosecutions is based on latest data from GNP+ Global Criminalisation Scan and media reports collated on criminalhivtransmission.blogspot.com. Final ranking will be based on the total number of prosecutions by July 1 2012 per 1000 PLHIV.

Results: At least 66 countries have HIV-specific criminal laws and at least 47 countries have used HIV-specific (n=20) or general laws to prosecute HIV non-disclosure, exposure or transmission. Despite growing national and international advocacy, prosecutions have not diminished, particularly in high-income countries, with the greatest numbers in North America. Since 2010, prosecutions have taken place in Belgium and Republic of Congo for the first time. In 2011, although HIV-specific laws were suspended in Denmark and rejected in Guyana, Romania passed a new HIV-specific criminal statute. In Africa, the continent with the most HIV-specific criminal laws but with few known prosecutions, Guinea, Togo and Senegal have revised their existing HIV-related legislation or adopted new legislation in line with UNAIDS guidance.

Conclusions: Given the lack or inadequacy of systems to track HIV-related prosecutions in most places, it is not possible to determine the actual number of prosecutions for every country in the world. These data should be considered illustrative of a more widespread, but generally undocumented, use of criminal law against people with HIV. Improved monitoring of laws, law enforcement, and access to justice is still required to fully understand impact on HIV response and PLHIV.

Dominican Republic: Urge President Fernández to repeal HIV criminalisation laws

A campaign to request the urgent modification of two HIV-specific criminal statutes in the Dominican Republic has gone viral.

I first became aware of the campaign via Twitter (in Spanish) and now ITPC (the International Treatment Preparedness Coalition) has circulated an English translation (see below) and are urging their members to sign on.

Please consider joining them by asking President Fernández to repeal HIV criminalisation laws §78 and §79. You might also want to refer him to the Spanish version of the Oslo Declaration on HIV Criminalisation which can be downloaded directly here.

To the President of the Dominican Republic

The signatories below, which include members of regional networks, non-governmental organizations, community-based organizations, request the urgent modification of Law 135-11 (known as the HIV/AIDS law) for violating the National Constitution as well international agreements that the Dominican Republic has signed up to.

Moreover, the law violates the human rights of Dominican citizens, in particular those living with HIV. We emphatically reject articles 78 and 79 of the law for promoting the criminalization of the transmission of HIV.

Such measures violate the rights of people living with HIV, ignore international good practice, undermine prevention efforts and increase stigma and discrimination. We request a swift amendment to the law and attach UNAIDS policy guidelines on the criminalization of HIV transmission.

In the absence of an amendment to the law, we will support Dominican citizens and organizations in condemning the law at the Inter-American Commission on Human Rights and at the Organization of American States.

In the hope of a favorable response, respectfully,

In order to sign the petition, visit this link (in Spanish) and please fill the form above with your Apellido (surname), Nombre (first name), País (country), Correo electrónico (email) and, optionally, the name of your organisation.  You can link to, or paste, the Spanish version of the Oslo Declaration, in the Comentarios box.

More background on the law can be found on the International HIV/AIDS Alliance blog.

Futher Background: from http://leysidarepdom.wordpress.com/2012/04/18/rechazo-al-articulo-78-y-79/

Reject Article 78

On the 7th June 2011, the president of the Dominican Republic enacted Law 135-11, known as the “HIV/AIDS Law”- the regulations thereof are still being finalised. This national law is the result of five years of multisectorial work, and although most of its articles are very progressive, at the same time it includes the criminalization of HIV transmission. The most questionable parts of the law are to be found in the following articles:

Article 78: Obligation to disclose one’s sexual partner. Any person who knows that they are HIV positive and does not tell their sexual partner can be sentenced to two to five years’ imprisonment. 

Article 79: Intentional transmission of HIV. Any person who intentionally transmits HIV, via any means, can be sentenced to twenty years’ imprisonment.

This law, and in particular the two aforementioned articles, promote the criminalisation, persecution and seclusion of people living with HIV in the Dominican Republic. It violates their human rights and contradicts a number of international agreements.

Join the campaign to amend law 135-11 (known as the HIV/AIDS law)

On Facebook, post your support on your wall, on the wall of the President of the Dominican Republic and the wall of the National HIV/AIDS Commission
 
On Twitter, use the folllowing hashtags and twitter handles when expressing your support #leysida @conavihsida @presidenciaRD
 
Send an e-mail or a letter to the Dominican Republic Embassy in your country, find the contact details here  

Belgium: First criminal conviction under poisoning law, advocates caught unawares

Last week saw the first successful prosecution for criminal HIV transmission in Belgium. The case surprised the main HIV support organisation, Sensoa, who were only informed of the case by the media because neither complainant nor defendant (both of whom were African migrants) had contacted them for support or legal advice.

Details of the case are relatively sketchy and only available in Dutch-language news reports, available here (English translation via Google) and here (English translation via Google).  A more detailed news story appeared following the man’s conviction in De Standaard, but I am unable to translate it.  They have been supplemented via a colleague working on the issue at Sensoa.

The facts in brief.

A 54 year-old man, originally from Angola, was found guilty of ‘knowingly infecting’ his former wife (originally from Congo, and thought to be significantly younger) with HIV via the existing criminal law of poisoning and sentenced to three years in prison, two of which are suspended.

The couple met and married in 2004 and the woman discovered she was HIV-positive during pre-natal testing in 2005.  Court evidence showed that her husband was diagnosed in 1994, whilst married to his first wife, but that he was in deep denial of the diagnosis because, according to his defence lawyer, Rafael Pascual

My client is very religious. He prayed for healing. His first wife and the children he had with her never became infected. Therefore he assumed that his prayers were answered. Without ever taking drugs.

Pascual also unsuccesfully argued that the complainant could have been infected by someone else, and that scientific evidence of his responsibility for infection was inconclusive.

The prosecutor had asked for five years in prison, two suspended, but the court gave a more lenient sentence.

Sensoa’s position – and difficulty in reaching marginalised populations – was highlighted in this article in De Standaard (English translation via Google) published last Thursday, the day of the verdict.

Sensoa, the Flemish service and expertise in sexual health, is concerned about the matter in Huy. “We are not asking for criminal prosecutions,” said spokesman Boris Cruyssaert. “In neighboring countries, we see that it is counterproductive. It just makes the taboo, because nobody dares to know if they are infected.”

“That does not mean that HIV patients should not share responsibility [for HIV prevention],” says Cruyssaert. “Only in the case of intentional transmission [should the criminal law be used]. The cultural aspect [of HIV] is often deeply rooted faith. Of course prayer does not eliminate HIV, but the Angolan man is very religious. He was really convinced that his prayers were answered. “

Sensoa tries to reach other cultures, with accessible information [about HIV] but that is not easy. Since 2009, in an opinion by the National Council of the Order of Physicians, a doctor can, in exceptional cases, inform the partner of an HIV patient [if there is a belief of exceptional risk of harm].

The case highlights three important issues.

First, the general law can always be applied even when it appears that a country has so far been spared prosecutions.

Second, people with HIV who have no connection with HIV support services may feel that the criminal law is their only recourse to justice, when appropriate counselling may have mitigated the sense of betrayal felt by the complainant.

Third, cultural issues (including faith-inspired denial) can have a major impact not only on disclosure, but also acccess to treatment, care and support.

Prior to this case, only two individuals had approached Sensoa for legal assistance, and these were civil cases, involving custody issues. In both cases the HIV-positive status of the father was used in court in an attempt to take away the father’s rights.

Two previous attempts at using the criminal courts for HIV exposure or transmission in Belgium were unsuccessful. One involved an HIV-positive man prosecuted for not disclosing to his girlfriend who subsequently tested HIV-positive, and a 2007 case involved an HIV-positive man from Ostend who was prosecuted for attempted murder for not disclosing to his boyfriend, who remained HIV-negative.

US: (Update) Nebraska passes unscientific, stigmatising body fluid assault law

Update: June 7 2011 

I’ve just learned via my colleagues at the Positive Justice Project in the US, that The Assault with Bodily Fluids Bill (LB226) introduced into the Nebraska State Legislature by Senator Mike Gloor recently passed into law with no amendments.

For further background on the bill, and Sen. Gloor’s motivation for introducing it, read this excellent piece from Todd Heywood in The Michigan Messenger.

“The entire bill is hinged on gross ignorance about the actual routes and risks of HIV transmission,” says Beirne Roose-Snyder, staff attorney for the Center for HIV Law and Policy in New York City. “Nowhere in the nearly three-decades-long history of the epidemic has a corrections officer been infected by the routes described in the bill. As for serious misinformation, there is real harm caused to law enforcement staff who themselves may be living with HIV, and to those who are not but who are being sold an unsound bill of goods on how to protect themselves, by placing a legislative imprimatur on the unfounded fears about how HIV and other diseases are spread. It also clearly has a negative impact on the way people with HIV are treated in and out of the criminal justice system, and has resulted in people serving decades of time behind bars on the basis of ignorance and hysteria.”

This latest development is extremely disappointing, and suggests that the trend of passing new laws that inappropriately criminalise people with HIV (and, sometimes other blood-borne infections such as hepatitis B or C) in a misguided attempted to protect police or other public safety officers is not reversing. 

A similarly unscientific and stigmatising bill – proposing mandatory testing and/or immediate access to medical records of anyone who exposes their bodily fluids to an emergency worker – has recently been proposed in British Columbia, Canada. Read this letter from the BC Civil Liberties Association about why the bill provides a false sense of security and may well be unconstitutional.


Original post: February 1st 2011

This Friday, February 4th, the Nebraska State Legislature will debate The Assault with Bodily Fluids Bill which would criminalise striking any public safety officer with any bodily fluid (or expelling bodily fluids toward them) and includes a specific increase of penalty to a felony (up to five years and/or $10,000 fine) if the defendant is HIV-positive and/or has Hepatitis B or C.

The Bill ignores the fact that HIV cannot be transmitted through spit, urine, vomit, or mucus; punishes the decision to get tested for HIV; and will not keep public safety officers safer, but rather will reinforce misinformation and stigma about HIV.

Download the full text of Nebraska Legislative Bill 226 here

Two major problems with the Bill are:

1. The proposed language in Sec. 2(3) is contrary to science

2. Codifying the breach of doctor /patient confidentiality in Sec. 2(5) is extremely serious, and should not be undertaken with no public health benefit

  • It is extremely important for public and individual health for people with HIV to get tested at the earliest opportunity, start timely treatment, and stay on treatment. This all hinges on having a good relationship with their doctor or health care provider. Forcing doctors and health care providers to reveal private health information, or even testify about it, will have a negative impact on patient trust of the health care system and willingness to remain engaged in HIV care. The plain language in Sec. 2(5) would force any person charged under this statute to be tested for the identified viruses, or force the opening of their medical records for previous testing results.

The Positive Justice Project (PJP) has produced a set of talking points (download here) that summarises the problems with the Bill, and with HIV-specific legislation in general.  PJP highlights that the wording of the Bill is so broad that it would allow for the following Kafkaesque situations:

  • If a person with HIV accidentally vomits in the direction of a medical officer in a prison infirmary, they could be sentenced to five more years in prison.
  • If someone accidentally sneezes in the direction of a police officer, a judge must grant a court order for their medical records and they may be subjected to involuntary HIV antibody and hepatitis B and C antigen testing if the police officer decides to press charges.
  • An inmate who spits or vomits in the direction of a corrections officer, even without hitting or intending to hit the officer, can be forcibly tested for HIV and hepatitis and if found to have any of these viruses, charged with a felony.
  • An adolescent with HIV or hepatitis held in a juvenile detention facility who spits while being restrained by a corrections officer, or while arguing with a guidance counselor, could wind up serving five years in an adult prison facility.

PJP asks anyone in the United States who cares about this issue to contact their State representative (using the talking points to highlight the many problems with the Bill) and specifically encourages any networks or individuals in Nebraska to contact:

State Senator Mike Gloor, who introduced the Bill. 
District 35
Room #1523
P.O. Box 94604
Lincoln, NE 68509
Phone: (402) 471-2617
Email: mgloor@leg.ne.gov

Sandra Klocke
State AIDS Director
Office of Disease Control and Health Promotion
Nebraska Department Health and Human Services
301 Centennial Mall South, 3rd Floor
P.O. Box 95026
Lincoln, Nebraska, 68509-5044
Phone: 402-471-9098-
Fax: 402-471-6446
sandy.klocke@nebraska.gov

and/or

Heather Younger
State Prevention Manager
Disease Prevention and Health Promotion
HIV Prevention
Nebraska Department of Health and Human Services
301 Centennial Mall South
Lincoln, Nebraska, 68509
Phone: 402-471-0362
heather.younger@nebraska.gov

Congo: First ever criminal prosecution nets 15 years for husband under poisoning law

The Criminal Chamber of the Court of Appeal of Pointe-Noire in Congo (also known as the Republic of Congo, or Congo-Brazzaville – not to be confused with its larger neighbour, Democratic Republic of Congo) has sentenced an HIV-positive man to 15 years in prison after finding him criminally liable for his infecting his wife. 

The sentence – which also included a payment of $100 million CFA francs (approximately US$210,000) –  as well as the prosecution itself has caused a great deal of controversy since sentencing was handed down on February 24th.

According to a March 2nd report by Inter Press Service Africa (in French here, and Google translated into English here) the case was controversial for several reasons.

First, the judge used his discretion to try Congo’s first ever criminal HIV transmission case by utliting the law on poisoning.

“The poisoning in our legislation is not limited. This is an administration or inoculation of substance in the body that cause damage or death,” Raymond Nzondo, lawyer for the victim told IPS.

This law was likely inherited from when Congo was part of France’s empire. However, French case law has now established that sexual fluids are not poisons, so the anti-poisoning law no longer applies.

Adding to controversy is the fact that an HIV-specific law, adopted by parliament in December 2010 but currently waiting to be enacted, now lists the circumstances in which criminal law cannot be applied to HIV transmission, with criminal liability limited to “intentional and deliberate” HIV transmission. The wording was changed following a workshop convened by civil society in 2009 in accordance with UNAIDS’ recommendations.

“This is illegal, this offense does not even exist in our legislation. I condemn this verdict,” Irenaeus Malonga, counsel for the accused, told IPS. He added that he had “already appealed to the Court of cassation [Congo’s court of appeal].”

Local organisations of people living with HIV / AIDS have also condemned the verdict. “We do not recognise this sentence as it is illegal. We will organise actions to ensure the man’s release,” warned Thierry Maba, HIV-positive, president of the Association of Young Positives Congo, a nongovernmental organisation (NGO) based in Brazzaville, the Congolese capital.

“The state was supposed to protect us, but now exposes us now by trial. And (with) 15 years imprisonment for a patient, he will die in prison,” says Simon, 35, an HIV-positive man from Pointe-Noire.

The IPS article includes scant details of the actual case, but it does quote the man’s lawyer claiming that both husband and wife had other sexual liaisions during their ten year marriage which certainly would create reasonable doubt that her husband was only the source of the woman’s infection.

“Who knows exactly who brought the disease home? Is something imagined. Before they married, both spouses had their life, the only screening test is not enough to convict someone,” railed Maba.

To Malonga, counsel for the condemned, the expert analysis can not say with certainty that contaminated the first spouse. “The doubt is there! The woman slept around, the man also has slept around, and they were married then,” he said.

Adding to the doubt that husband was the source of his wife’s infection is the fact that he had been on tretament since 2000 – this fact was used to prove that he knew his HIV-positive status, but there was no argument made by his defence about reduced infectiousness on treatment.

According Nzondo, counsel for the victim, her husband was under treatment since 2000, but had said nothing to his wife. He therefore did not use a condom during sex. The woman then began to develop the disease in 2005.  “The man knew he was sick and was taking medication by hiding his wife. The fact was intentional and criminal,” said Nzondo. 

US: Montana legislator’s HIV “ignorance in the first degree” exposed and denounced

Judicial ignorance is something I often highlight on my blog.

Sadly, it is most often (but not exclusively) seen in the United States – a place where a Michigan prosecutor believes that biting someone in self-defence is terrorism if the biter is HIV-positive; where a Texas defence lawyer believes people with HIV are potential “serial killers” if they don’t disclose before having unprotected sex because their HIV is a “deadly weapon”; and where a North Carolina judge believes that a man who attempts to bite a police officer on the ear is also a walking ‘deadly weapon’.

Today I’m adding a new label to my blog – political ignorance – inspired by two scary, crazy, and dangerous events in as many weeks.

On Tuesday, Montana Representative Janna Taylor (a Republican, of course) testified in favour of Montana keeping the death penalty by citing the example of the most heinous, murderous crime she could think of – prisoners with HIV aiming saliva and/or blood-soaked paper “blow darts” at prison guards in an attempt to kill them.

Yesterday, the video of Rep. Taylor’s comments, originally posted on YouTube by shitmyrepsaid went viral throughout the US bloggersphere – from Montana bloggers Don Pogreba and D Gregory Smith to more mainstream gay sites, Towleroad and Queerty.

[Update 11 February: LGBT health blog, Crowolf, features an email response from Rep. Taylor that states:

I have tried to answer every email, even the ones that were not professional, as you worded it. My words were very poorly chosen, and I apologize for them. Montanans with HIV are simply people living with a virus. I was intending to illustrate that there are scenarios we cannot currently conceive of that may warrant the death penalty, and to remove it from the available options for punishment at this time would be misguided. HIV transmission was not an appropriate example. Again, I sincerely apologize for my inappropriate and inelegant statement, and I encourage all Montanans to become better educated about HIV.

It’s all well and good to respond to individual emails, but there’s nothing yet on Rep. Taylor’s own website making her HIV u-turn clear to her constituents and rest of the America.]

The idea that HIV could be transmitted in this way, and that this could be considered not just murderous intent, but worthy of the death penalty, is a point of view so dripping in HIV-phobic ignorance that at first I thought it wasn’t worth blogging about.  After all, it’s so scarily out-of-step with science that surely no-one would take her comments seriously. Why give her poisonous ideology any further oxygen?

But during a lengthy email discussion yesterday with Sean Strub, senior advisor to the Positive Justice Project (PJP) and Catherine Hanssens, executive director of the Centre of HIV Law and Policy which hosts the PJP, I was persuaded that this lawmaker’s ignorance provided an excellent opportunity to highlight exactly how HIV-related ignorance plays its part in the further stigmatisation – and criminalisation – of people with HIV.

More of that in a moment.

Now this wasn’t the only recent case of a US politician furthering HIV-related stigma in the name of ‘justice’.  Just last week, as highlighted in my blog post here, Nebraska State Senator Mike Gloor introduced a bill into the Nebraska State Legislature that would especially criminalise people with HIV (and viral hepatitis) who assaulted a peace officer through body fluids – notably by spitting, or throwing urine at them. (Neither of these risk HIV exposure.)

In both cases, PJP reacted swiftly to the threat. They worked closely with advocates in Nebraska to fight against the proposed body fluids assault bill and despite local media coverage that appeared to suggest strong support for the bill, local advocates reported (in a private email to the various PJP workgroups – full disclosure, I’m a member of the media workgroup) that because of opposition testimony from ACLU-NE and Nebraska AIDS Project, good questions were raised by some Senators on the committee that may lead to them to seriously consider blocking this bill’s passage.

And last night, PJP put out a press release that highlights Rep. Taylor’s “ignorance in the first degree”.

When HIV-related ignorance and stigma emanates from the mouths of politicians and lawmakers, this becomes state-sponsored ignorance and stigma – the most dangerous kind, the kind that can lead to HIV-specific criminal laws, or provisions that turn misdemeanours into felonies resulting in significantly longer sentences for people living with HIV than those without.

Treating people with HIV as potential criminals when in fact we pose no real threat with the kind of behaviour politicians believe is ‘dangerous and criminal’, takes away our human and civil rights and furthers the public’s and media’s perception that people with HIV are something to be feared or hated.

PJP’s powerful and co-ordinated response is the kind of advocacy in action that needs to be replicated wherever the rights of people with HIV are threatened by ignorance and stigma.

The full text of the press release is below. It can also be downloaded as a pdf here.

Positive Justice Project
Denounces Montana Legislator’s Uninformed Comments
“…ignorance in the first degree…”

Contact:
Catherine Hanssens, 347.622.1400
chanssens (at) hivlawandpolicy.org
Sean Strub, 646-642-4915
sstrub (at) hivlawandpolicy.org

New York, February 9, 2010 – Leading public health officials and advocates for people with HIV responded swiftly to news that a Montana state legislator, while testifying in favor of retaining the state’s death penalty statute, suggested that prisoners with HIV make paper “blow darts”, put their blood or saliva on them and throw them at prison guards in an attempt to kill them.

A video of the legislator’s comments was posted earlier today by blogger Don Pogreba at the Montana-based website intelligentdiscontent.com.

According to the federal Centers for Disease Control, HIV is not transmitted by saliva, and HIV in blood dies quickly after being exposed to air. HIV-infected blood does not survive outside the body long enough to cause harm, unless it penetrates mucus membranes.

The Positive Justice Project, a program of the New York-based Center for HIV Law & Policy, is a coalition of more than 40 public health, civil liberties and HIV/AIDS organizations combating HIV criminalization and the creation of a “viral underclass”; they oppose laws that treat people with HIV different from how those who do not have HIV, or who do not know their HIV status, are treated.

The Center’s executive director, Catherine Hanssens, said “Rep. Janna Taylor’s remark is ignorance in the first degree. Quite frankly, it is typical of the ignorance we had to deal with decades ago, early in the epidemic, when little was known about how the virus was transmitted. It is astonishing that an elected official today could be so fundamentally uninformed.”

Julie M. Scofield, executive director of the National Association of State and Territorial AIDS Directors (NASTAD), said “My plea to Rep. Taylor and legislators at all levels concerned about HIV is to do your homework, talk with public health officials and get the facts. Spreading fear about HIV transmission will only set us back in the response to the HIV/AIDS epidemic in Montana and every other state in the U.S.”

Other experts from Montana and national organizations also commented on Rep. Taylor’s remarks:

“Ms Taylor’s statement just shows the need for greater support and funding for HIV education and prevention in the State of Montana. Unfortunately, misinformation such as this is all too prevalent, leading to pointless discrimination and myth-based fears and policies. After 30 years of dealing with HIV, the public should be much better informed about its transmission. No wonder HIV infection rates haven’t stopped.”

— Gregory Smith, co-chair of the Montana HIV/AIDS Community Planning Group, a licensed mental health counselor and a person living with HIV

“I am disturbed and disappointed to hear such misinformation coming from a local government official, but sadly I am not especially surprised. As we enter the 30th year of this worldwide epidemic I am frequently reminded of the need for continued education and outreach, the facts are still not clearly understood by the general masses. Perhaps if we were more willing as a society to discuss more openly the risk behaviors that transmit the virus we would not find ourselves responding to such an insensitive and false statement.”

— Christa Weathers, Executive Director, Missoula AIDS Council, missoulaaidscouncil.org

“HIV infected blood cannot infect someone through contact with intact skin or clothing if the skin underneath is intact.”

— Kathy Hall, PA-C, retired American Academy of HIV Medicine-certified HIV Specialist, Billings, MT

“The comments made by the Montana Legislator really demonstrate total ignorance about how HIV is transmitted. If elected officials don’t understand the basic facts, how can we expect young people and those at greatest risk to understand them?”

— Frank J. Oldham, Jr., President, National Association of People with HIV/AIDS, napwa.org

“This is an example of people with HIV, especially those who are incarcerated, being stigmatized and used as fear-fodder by politicians whose ignorance and quickness to demonize people with HIV outweighs common sense and two minutes of Google research. Even when someone is exposed to HIV, a 28-day course of anti-HIV drugs used as post-exposure prophylaxis is effective in preventing HIV infection. It also isn’t a death sentence; those who acquire HIV today and have access to treatment generally don’t die from AIDS.”

— Sean Strub, founder of POZ Magazine, a 30 year HIV survivor and senior advisor to the Positive Justice Project.

****
The Positive Justice Project is the first coordinated national effort in the United States to address HIV criminalization, and the first multi-organizational and cross-disciplinary effort to do so. HIV criminalization has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission.

For more information on the Center for HIV Law and Policy’s Positive Justice Project, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.

To see the Center for HIV Law and Policy’s collection of resources on HIV criminalization, go to: http://www.hivlawandpolicy.org/resourceCategories/view/2

The Positive Justice Project has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the Positive Justice Project working groups, email: pjp (at) hivlawandpolicy.org

US: Positive Justice Project publishes essential new advocacy resource

The Center for HIV Law and Policy has released the first comprehensive analysis of HIV-specific criminal laws and prosecutions in the United States. The publication, Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions, covers policies and cases in all fifty states, the military, federal prisons and U.S. territories.

Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions is intended as a resource for lawyers and community advocates on the laws, cases, and trends that define HIV criminalization in the United States. Thirty-four states and two U.S. territories have HIV-specific criminal statutes and thirty-six states have reported proceedings in which HIV-positive people have been arrested and/or prosecuted for consensual sex, biting, and spitting. At least eighty such prosecutions have occurred in the last two years alone.

People are being imprisoned for decades, and in many cases have to register as sex offenders, as a consequence of exaggerated fears about HIV. Most of these cases involve consensual sex or conduct such as spitting and biting that has only a remote possibility of HIV exposure. For example, a number of states have laws that make it a felony for someone who has had a positive HIV test to spit on or touch another person with blood or saliva. Some examples of recent prosecutions discussed in CHLP’s manual include:

• A man with HIV in Texas is serving thirty-five years for spitting at a police officer;

• A man with HIV in Iowa, who had an undetectable viral load, received a twenty-five year sentence after a one-time sexual encounter during which he used a condom; his sentence was suspended, but he had to register as a sex-offender and is not allowed unsupervised contact with his nieces, nephews and other young children;

• A woman with HIV in Georgia received an eight-year sentence for failing to disclose her HIV status, despite the trial testimony of two witnesses that her sexual partner was aware of her HIV positive status;

• A man with HIV in Michigan was charged under the state’s anti-terrorism statute with possession of a “biological weapon” after he allegedly bit his neighbor.

The catalog of state and federal laws and cases is the first volume of a multi-part manual that CHLP’s Positive Justice Project is developing for legal and community advocates. The goal of the Positive Justice Project is to bring an end to laws and policies that subject people with HIV to arrest and increased punishment on the basis of gross ignorance about the nature and transmission of HIV, without consideration of the actual risks of HIV exposure.

The manual’s completion was supported by grants for CHLP’s anti-criminalization work and Positive Justice Project from the MAC AIDS Fund and Broadway Cares/Equity Fights AIDS.

Download the manual here (2.3MB)

Nigeria: Oh the irony – “aggressive dissemination” of HIV-specific law both increases and punishes stigma

It was passed three years ago, but only now has the Lagos State AIDS Control Agency (LSACA), in collaboration with Enhancing Nigerian HIV Response (ENR) and the Lagos State Ministry of Justice begun “aggressive dissemination” of the Law for the Protection of Persons Living with HIV and Affected by AIDS in Lagos state and for other Concerned Matters.

According to the Daily Independent, the law’s prime aim is to protect the rights of people with HIV by punishing HIV-related stigma.

Any form of prejudice, negative attitudes, abuse and maltreatment directed at people living with HIV and AIDS amounts to stigma. However, not so known to many people is the fact that committing any of these acts now amount to committing serious legal sins against HIV positive persons, for which some of the punishments are almost as grave as criminal offences.

There are, indeed, some positive provisions in the law which punishes breaches in healthcare worker-patient confidentiality and employer and landlord discrimination of people with HIV. It also criminalises bogus claims of HIV ‘cures’.

To make this law work effectively, a Justice and Human Rights Watch Group is to be established. The group, which shall be under the control of the Lagos AIDS Control Agency, would be responsible, by law, for the monitoring and implementation of provisions of the law.

Ibirogba said, “Part of the policy which informed the drafting and subsequent passage of the law was the fact that Lagos state is most concerned about the plight of the affected persons, especially in terms of discrimination and stigmatization in hospitals, their neighbourhood and places of work.

Head of LSACA’s project Office, Dr. Olusegun Ogboye, said the agency would do everything possible to ensure the law is disseminated across as many Nigerians in Lagos.

ENR coordinator in Lagos, Dr. Olusegun Oyedeji, however cautions that HIV positive people should not take advantage of the law to ‘stigma people who are HIV negative or make unprincipled demands.’

“It will not make sense for any person to demand for special attention or ask for more than what he or she deserves because he or she is HIV positive,” Oyedeji said at the dissemination forum, which also had People Living With HIV/AIDS in attendance.

However, and without a hint of irony, it notes that – in my opinion – a poorly-written, vague and problematic statute in the law

makes an offence punishable with various jail terms up to 10 years imprisonment and fines for anyone who intentionally infects others with the Human Immunodeficiency Virus (HIV) that causes the Acquired Immune Deficiency Syndrome (AIDS).

Director at Citizens Rights directorate of Lagos state ministry of Justice, Mrs. Omotilewa Ibirobga, who gave insights on the law during the dissemination meeting at Cheers Hotel, Ikeja, Lagos , said “Section (18) subsection (1) is clear about this.”

The section reads; “Any person who willfully or knowingly endangers other persons by infecting them with the AIDS virus, commits an offence and shall be liable on conviction to a fine not exceeding N200,000 or imprisonment not exceeding 10 years or both fine and imprisonment.”

Across the continent in Uganda, international civil society Organisations, academics and HIV professionals met with the social service committee of the Parliament of Uganda last month to argue that similarly worded criminalisation statutes in the HIV/AIDS Prevention and Control Bill will increase HIV-related stigma.

[We] are of the view that crucial provisions of this law constitute a step back to the pre-1987 time when ignorance, fear, stigma and discrimination were the hallmarks of national engagement with the crisis. Namely mandatory testing, that is to say testing of a person for HIV without their knowledge and informed consent; mandatory disclosure, that is to say disclosure of a person’s HIV status without their knowledge and informed consent; and criminalization of intentional transmission of HIV.

South Africa: Opposition leader Helen Zille says HIV exposure is ‘attempted murder’, cites Nadja Benaissa case as example

South Africa’s leader of the Democratic Alliance opposition party, Western Cape Premier Helen Zille has said that HIV-positive people who knowingly have unprotected sex without disclosing their status, should be charged with attempted murder. She also cited the recent case of German pop star, Nadja Benaissa, as an example for South Africa to follow.

Her remarks, reported in the Cape Times, were made during an address to the South African Institute of International Affairs last week.

She said the lack of personal responsibility contributed to some of the greatest social ills in the country.

“Social pathologies are complex, but I think we must all agree that promoting a culture of personal responsibility is essential to addressing all these things. We also need to take action against people who are HIV-positive and knowingly have unprotected sex without disclosing their status. This, I believe, is an offence on a par with attempted murder. This is complex and difficult, and requires enormous courage from the wronged sexual partner to lay a charge and give evidence,” Zille said.

[…]

Zille said the recent court case against a German pop star for failing to disclose her HIV-positive status was an example to emulate. German singer Nadja Benaissa, a member of No Angels, was found guilty of causing grievous bodily harm to her ex-boyfriend by having unprotected sex with him despite knowing she had HIV. The 28-year-old was given a two-year suspended prison sentence and 300 hours’ community service. Zille said the lack of personal responsibility contributed to some of the greatest social problems facing the country, such as HIV/Aids, alcoholism, drug abuse, teenage pregnancy, foetal alcohol syndrome, and absentee fathers who did not pay maintenance.

In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law. It concluded that “an HIV-specific statutory offence/s will have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence/s are not justified; and an HIV-specific statutory offence/s will infringe the right to privacy to an extent that is not justified.”

A 2003 Criminal Law Amendment Bill sought to define non-disclosure of HIV status prior to otherwise consensual sex as rape, but that definition was not included in the version of the bill ultimately approved in 2007. Rather, the legislation requires HIV-antibody testing for suspected rapists and allows for longer prison sentences for rapists found to be HIV-positive.