On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.
Denmark: Justice Minister suspends HIV-specific criminal law, sets up working group
Denmark’s Justice Minister Lars Barfoed has today suspended Article 252 of the Criminal Code – the so-called ‘HIV law’ – pending an inquiry by a government working group to consider whether the only HIV-specific law in Western Europe should be revised or abolished.
The move was announced today in a press release by AIDS-Fondet (AIDS Foundation) and covered in the gay magazine, Out and About. (Both of these are in Danish, and so I’m relying primarily on Google Translate, although colleagues in Denmark have also been in touch to tell me the exciting news.)
Denmark prosecuted its first case in 1993, but the Supreme Court found in 1994 that the wording of the existing law (“wantonly or recklessly endangering life or physical ability”) did not provide a clear legal base for conviction. The phrase “fatal and incurable disease” was added in 1994, and HIV was specified in 2001.
According GNP+’s Global Criminalisation Scan here have been at least 18 prosecutions: at least one failed due to the accused committing suicide. At least ten involved non-Danish nationals, including seven people of African origin. At least eleven convictions for either sexual HIV exposure or transmission are reported. The maximum prison sentence is eight years.
Today’s announcement came about as a result of a Parliamentary question from opposition Unity MP, Per Clausen on behalf of the Parliamentary Legal Committee.
“The Minister should state whether the Ministry [of Justice] will consider changing or eliminating the special clause in the legislation that criminalises [HIV-positive individuals for] unprotected sex with uninfected [individuals] in light of the significantly improved treatment options for HIV-positive people, in particular since treatment is able to reduce the risk of infection to [near] zero.”
In his reply, Justice Minister Lars Barfoed explains the history of the legislation and then quotes the Health Protection Agency about HIV ‘risk’ and ‘harm’.
“Modern combination therapy reduces HIV in the blood by more than 99% during the first weeks of treatment, whereby patients’ general condition improves. The strongly reduced amount of HIV in blood and tissue fluids also greatly reduces the risk of transmission from an HIV-positive person on antiviral therapy. This greatly reduced risk is difficult to quantify but considering the risk to be near zero is a theory that some doctors have put forward, but there is no national or international consensus that about this…The life-expectancy of someone with HIV is no different from the age- and gender-matched background population. HIV is, in other words, not in itself fatal if treated in time; medication taken regularly; and there are otherwise no complications from other diseases, etc. Timely treatment is now so effective and well tolerated, that 85-90% of patients can live normal lives if they take their medication daily. It is the 5-10% of patients who are diagnosed late who still experience a substantial excess mortality and morbidity. [However] HIV is still incurable.”
He goes on to say that the law as it is currently written – casting HIV as a life-threatening condition and criminalising unprotected sex by a person with HIV – appears to be obsolete and that the working group must consider whether to amend, or totally rewrite, Article 252.
The working group will comprise Justice Minister Barfoed and Interior Affairs and Health Minister Bertel Haarder with representatives from the Ministry of Interior, Ministry of Health, the Health Protection Agency and the Prosecutor General. It is believed they will come to a conclusion later this year. (Update Feb 22: My contact at AIDS-Fondet tells me this process will take place much sooner, within the next two months.)
In their press release AIDS-Fondet notes that it has been working on changing the law for years and so this development is very welcome.
We hope this suspension is the beginning of the end of the so-called HIV Criminal Law. This criminal provision is in itself a barrier to prevention, and there has also long been a need for the improved treatment of HIV-people to be reflected in the Penal Code, says Henriette Laursen, AIDS-Fondet’s director.
Two of Denmark’s foremost HIV experts, Professor Jens Lundgren and Professor Jens Skinhøj, have previously called for the law’s abolition.
US: Michigan bite man charged under anti-terrorism laws gets 11 months probation in plea deal (update-4)
Update: Dec 8th 2010
Macomb County Circuit Court Judge Peter Maceroni today sentenced the 46 year-old Michigan man once charged under terrorism laws for allegedly biting his neighbour to eleven months on probation after pleading guilty to a single assault charge.
“This was nothing more than gay-bashing,” attorney James L. Galen Jr. told Fox 2. “The only reason my client took a plea deal was because of his health, and one of the witnesses didn’t show up for the defense.”
Mlive.com’s headline, ‘All bark, small bite: Probation for Clinton Twp man with HIV once charged with bioterrorism’ can only hint at the ridiculousness of the charges and the pain and financial cost suffered by this man. In the end, probation is still too much of a penalty, and it is far too late to repair the damaged reputations of both the man accused and HIV itself.
Update: Nov 5th 2010
Todd A Heywood of the Michigan Messenger, who has been following the case of the 46-year-old Michigan man who was charged with terrorism after biting his neighbour in October 2009, reports that the man has reached a plea deal on the two felony charges that remained following the rejection of the bioterrorism charges in June 2010.
Daniel Allen was originally charged with one count of bioterrorism, one count of assault with intent to maim and one count of assault with intent to do great bodily harm less than murder. Macomb County Circuit Court Judge Peter Maceroni rejected the bioterrorism charges in June, leaving Allen facing the two, ten-year felonies.
The charges stem from an October 2009 altercation between Allen and his neighbor Winfred Fernandis, Jr. Fernandis alleges that Allen attacked him without provocation, while Allen says the incident was part of a long running series of anti-gay harassment by Fernandis and his family. Fernandis says Allen bit his lip during the fight.
Under the plea deal, Allen has agreed to plead no contest to assault with intent to maim. Under the deal, if Allen successfully concludes a probation period, the charge will be changed to a misdemeanor of aggravated assault and the second charge, assault with intent to maim would be dismissed.
But Fernadis, the victim, told the Daily that he might back out of the agreement. He specifically told the newspaper he would be OK with the deal if Allen moved from the home he owns in Clinton Township.
Allen faces a sentencing hearing in front of Maceroni Dec. 8.
Update: Nov 20th 2009
Journalist Todd A Heywood reports in another Michigan Messenger article that
HIV activists from the group Michigan Positive Action Coalition have issued a press statement encouraging people with infectious diseases, including H1N1, HIV or the common cold, to call the Macomb County prosecutor and “voluntarily turn themselves in” to be charged with terrorism. In the statement issued by Mark Peterson, a director for the group, activists called the charges leveled against 44-year-old Clinton Township resident Daniel Allen “ridiculous.”
Update: Nov 18th
Journalist Todd A Heywood has published a second article in the Michigan Messenger that includes an interview with the man’s lawyer, James Galen Jr.
The story has also been picked up by Michael Carter at aidsmap.com.
Original post: Nov 10th
Last week I reported on the case of an HIV-positive gay man in Michigan whose HIV status was revealed in a TV interview and who is now facing serious criminal charges for biting his neighbour during a fight.
Todd A Heywood of the Michigan Messenger has followed up on this story and discovered that one of the charges the man faces is a Kafkaesque terrorism charge – possession or use of a harmful device – that would create a legal precedent in Michigan if the charges actually stick.
The piece also includes an interview with a Republican State Rep. Rick Jones, who sits on the Judiciary Committee, and who believes that spitting should remain criminalised.
Jones said during an interview that if someone with HIV spits at a police officer while screaming ‘I hope you get AIDS,’ that that person should be charged with a crime, because that shows an intent, even if the mode of possible transmission via spitting “would be a very difficult way to transmit” the virus. He said the intent to spread the disease is the issue, not necessarily the mode.
The entire article is posted below, with Todd’s permission.
State lawmakers question terrorism charges for HIV-positive man
Bite during fight called use of a ‘harmful device’ under anti-terror lawBy Todd A Heywood, Michigan Messenger
An HIV-positive Macomb County man is facing charges created under Michigan’s 2004 terrorism laws for biting another man in a neighborhood scuffle. That, HIV advocates, state lawmakers and legal experts say is “cowardly” and “nonsense” and increases ignorance and stigma surrounding the virus.
State Rep. Mark Meadows, who chairs the House Judiciary Committee said in an interview he does not believe the legislature had the neighborhood fight situation in mind when it drafted the terrorism laws. The Democrat from East Lansing also said he thought the prosecution was “silly.”
“Is this a dangerous instrumentality? It’s like saying that because I breathed on you and I have tuberculosis and we are fighting, that somehow because I have this disease it suddenly becomes more than just that I have this disease,” said Meadows, a former assistant attorney general. “The other charges are more than sufficient to deal with the issues involved.”
In the end, Meadows believes that the circuit court judge will toss out the terrorism charge, which he said was “a stretch.”
A fight among neighbors
The case arose out of an Oct. 18 fight between 44-year-old Daniel Allen and his neighbor Winfred Fernandis Jr. What happened that day is disputed.
According to a report from Clinton Township Police Department, Fernandis said Allen jumped him without provocation when he went to retrieve a football neighborhood kids accidentally threw onto Allen’s yard. Fernandis, according to the police report, said Allen “hugged up” to him and began to bite him. Fernandis suffered a bite wound on the lip so severe, police say, it went all the way through the lip. Fernandis sought medical treatment and the wound was sewn shut.
Allen, however, alleges that Fernandis, his wife Denise and Fernandis’ father assaulted him, and he does not recall biting the younger Fernandis. He too sustained injuries during the incident, and his lawyer during a Nov. 2 hearing presented 37 photographs of injuries, including bite marks to Allen’s body. Allen and his attorney maintain Allen was the victim of a hate crime because Allen is gay. Since the incident, Allen has filed a personal protection order against the Fernadis family and a criminal complaint with the township police.
Following the incident, police were called in and after a brief investigation, placed Allen under arrest and charged him with two crimes: aggravated assault, a misdemeanor charge which carries a punishment of up to one year in jail and/or $1,000 fine and assault with intent to maim, a 10-year felony.
Macomb County Prosecutor Eric Smith refused to return multiple messages left for him. Allen’s attorney, James Gallen, did not return calls.
HIV Becomes the Feature of the Story
The story, a man severely biting another man, drew the attention of the Detroit-area media, and Fox 2 News soon had Allen on video admitting he was HIV-positive.
That admission lead Smith, a Democrat, to say he would seek additional charges. On Nov. 2, Smith’s office amended its complaint to add a charge of possession or use of a harmful device. That law is a 25-year felony and was part of a 2004 package of terrorism laws created by the legislature in the wake of the Sept. 11, 2001, attacks.
The law makes it a crime to have a harmful device, which is defined as either biological, chemical, electronic or radioactive. Smith’s office is arguing that Allen being infected with HIV was “a device designed or intended to release a harmful biological substance,” and that his bite was thus an attempt to spread HIV.
Smith’s office is relying on a Michigan Court of Appeals ruling in a case of an HIV-positive, and hepatitis B infected prisoner who spit at prison guards during an altercation in the prison. In that case, People v. Antoine Deshaw Odom, the three judge panel found:
We therefore conclude that HIV infected blood is a ‘harmful biological substance,’ as defined by Michigan statute, because it is a substance produced by a human organism that contains a virus that can spread or cause disease in humans.
The three judge panel was silent on whether the hepatitis infection weighed in as a factor as a harmful biological substance. As a result of this finding, the court upheld a stricter sentencing score for Odom. In 2008, the Michigan Supreme Court refused to hear an appeal on the matter, upholding the Appeals Court decision.
On Nov. 2, District Court Judge Linda Davis concurred with Smith’s office and bound Allen over to Macomb Circuit Court to face the three charges.
According to The Macomb Daily, the judge said:
“[Allen] knew he was HIV-positive, and he bit the guy,” Davis said from the bench. “That on its own shows intent.”
Criminalizing HIV with traditional, non-HIV specific laws not new
HIV experts say it is a near impossibility to spread HIV through a human bite.
The Centers for Disease Control and Prevention in Atlanta said it has one case on record where it believes HIV was transmitted through a human bite. But the case, out of South Carolina, is of an older man who claims to have had no other risk factors except being bit by a sex worker who was infected with HIV. That sex worker claims the man refused to pay for her sexual services, and she bit him in an attempt to get her money.
But, even allowing for that case, experts say there are other factors to consider. In 2003, the most recent year available for statistics on the CDC website, about 1 million people in the United States were living with HIV/AIDS, putting the prevalence of HIV transmission via biting at .000000001 percent. In contrast, an online search of news reports finds hundreds of media reports of biting incidents involving HIV-positive people.
“Even if you accepted that as a transmission case,” said Catherine Hanssens, executive director of the New York City-based Center for HIV Law and Policy. The charges against Allen, she said, simply aren’t warranted. “It’s just nonsense. It’s cowardly. It’s the kind of thing that keeps kids [with HIV] out of day care and camps and allows kids [with HIV] to be kicked out of karate case.”
She said cases like Allen’s are proof that the nation is failing to address the epidemic with common sense. “It’s continuing the boogey-man characterization of people with HIV,” she said.
“This troubles me very much,” says Lambda Legal HIV Project Director Bebe Anderson. “I think it is a very dangerous thing for prosecution to proceed with a charge or an enhanced charge based on a person’s HIV status. Typically these prosecutions are based on ignorance about HIV transmission. These prosecutions add to ignorance in the general public about HIV transmission, and they certainly add to the stigmatization of people living with HIV.”
The move to charge Allen with terrorism-related charges, Anderson said, was deeply troubling.
“Its a very dangerous notion that somebody who has a physical condition such as H1N1 or HIV or some other virus, that, that person then can then be charged with having a harmful biological substance and then if they are out there in contact with other people and they are putting other people at risk it is troubling.” said Anderson. “That’s not something that is legitimately criminalized and these prosecutions start us in that direction in a very dangerous way, I think.”
Anderson said to her knowledge this is the first time she has seen a terrorism law used in connection with an HIV-infected persons prosecution. She said she believes the terrorism law is being misapplied, and that Allen’s defense is going to have to make basic information about HIV and its transmission clear to the courts.
“I think it is very important to try to get in front of the judges and the prosecution accurate information about HIV,” Anderson said. “I think what happens is that these prosecutions are fueled by ignorance, then unfortunately that ignorance gets compounded because the judge makes a ruling or the jury makes a ruling based on fear and myths of HIV and not the actual risk posed by particular conduct.”
Hanssens and Anderson said that the trend of charging HIV-positive people with charges based on their HIV status is nothing new, but both say there has been an increase in cases in recent years.
“What seems new is there seems to be a sudden uptick in the number of these type of cases in the last year or so,” Anderson said.
HIV activist Mark Peterson, from Michigan POZ Action said he is also concerned about this case. In an email statement to Michigan Messenger, Peterson said:
“This sort of conflict is sad anytime it happens. At the same time, charging a person with possession or use of a harmful device simply because they have an infection, especially where the is NO scientific evidence of HIV ever being spread this way, is just another example of how our laws are based on fear and ignorance and not science…Its interesting to see how the impact of stigma and homophobia that still surrounds HIV shows up in our legal system.”And Meadows is not the only legislator sounding off on the case.
State Sen. Hansen Clarke, a Detroit Democrat and a vocal advocate on behalf of people living with HIV/AIDS, said in an interview that the charges are out of proportion.
“I think we need to put this in perspective in light of the tragic events at Fort Hood,” Clarke said. “That should be investigated as terrorism. The magnitude of the instances is not even similar.”
He said the impact of such a prosecution was “harmful” to addressing HIV stigma in the state.
“I don’t think our legal system should treat everyone that has a disease that could be communicated to some one else differently,” Clarke said.
State Rep. Rick Jones, a Republican from Grand Ledge who sits on the Judiciary Committee, said the terrorism charge was likely not appropriate.
“If it was a fight and people were biting each other I would not think that is an appropriate charge,” said Jones, a former Eaton County sheriff. “I think you should able to be charged with attempt to transfer HIV if it can be shown in a court of law you made a genuine attempt to transfer [it].”
Changes in law deemed necessary
While the use of non-specific HIV laws to criminalize those infected is not a new trend, neither are the laws to criminalize HIV. Michigan passed a law in 1988 which makes it a felony for a person who knows he or she is infected with HIV to engage in sexual penetration, however slight, without disclosing that status first.
In April, Michigan Messenger highlighted the story of Michael Holder who spent eight years in a Michigan prison for allegedly failing to disclose his HIV-status to his partner. The Iowa Independent, Michigan Messenger’s sibling site, has closely followed the criminal prosecution and conviction of Nick Rhoades, who was convicted of failing to disclose his HIV status and sentenced to 25 years in prison. He was released in September and is serving a five-year stint on probation after a judge reconsidered his harsh sentence.
Federal law mandated all states to certify each had a law in place to criminally prosecute people with HIV who did not disclose that to people before engaging in behavior which might spread the virus. That mandate was made in 1990 and by 2000 all 50 states had certified.
But two decades into the epidemic, with science getting a better understanding of HIV and how it is spread, lawmakers are beginning to say the current laws need to be revisited.
Jones said during an interview that if someone with HIV spits at a police officer while screaming ‘I hope you get AIDS,’ that that person should be charged with a crime, because that shows an intent, even if the mode of possible transmission via spitting “would be a very difficult way to transmit” the virus. He said the intent to spread the disease is the issue, not necessarily the mode.
Jones, who also once served as a jail administrator, was tasked with knowing universal precaution rules inside and out. He also added that the law should be expanded to include other diseases, such as tuberculous and hepatitis.
Jones discussed Michigan’s 20-year-old disclosure law which makes it a crime for an HIV-positive person to engage in sexual penetration, however slight, without first disclosing their HIV infection. He was surprised to learn the law did not address sharing needles, but including activities that cannot spread HIV, such as sex toys. Asked if he believed it was time to revisit the disclosure law, he said: “Yes. Yes, I would agree with that. But I might add things like needle sharing, and I might subtract things to make more of an intent crime.”
Austria: AIDS 2010 delegates warned about criminal HIV exposure laws; law clarified but not binding
The organisers of the International AIDS Conference, due to be held in Vienna from next Sunday (18th July), have today provided an important update on Austria’s criminal HIV exposure and transmission laws.
They recommend that anyone who is aware they are living with HIV practice safer sex and safer injecting practises whilst in Austria to minimise the legal risks.
Although the Austrian Ministry of Justice has issued various opinions clarifying the law on HIV exposure and transmission – including recognising that sex with a condom or unprotected sex with an undetectable viral load is not a criminal offence – and that this is a “firm directive to the courts, it should be noted that it does not actually change the law and is not necessarily binding on the courts. As such, conference delegates are advised to always adopt safer sex practices to protect their health, minimize the risk of transmission and the associated legal risks.”
Full statement below.
Statement on Austrian Laws Impacting People Living with HIV/AIDS (PLHIV)
from AIDS 2010, GNP+ and ICWLocal and international organizers for the XVIII International AIDS Conference (AIDS 2010) look forward to welcoming delegates to Vienna this month.
As delegates plan their stay in Vienna, this short statement provides an overview of some Austrian laws that impact on people living with HIV/AIDS (PLHIV). The organizers of AIDS 2010 recommend that conference delegates read this statement to understand their legal position with respect to these areas of law.
There are two key points in this statement:
- Intentional and negligent acts capable of transmission of HIV are criminal offences in Austria
- Legal risks can be minimized through safer sex and safer injecting practices
Intentional and negligent acts capable of transmission of HIV are criminal offences in Austria
The Austrian Penal Code provides that it is a criminal offence to commit an act which is capable of causing the danger of spreading an infectious disease. Under the law, the disease must be reportable or notifiable. HIV is considered such an infectious disease, along with Hepatitis C, tuberculosis and gonorrhoea. An ‘act’ capable of causing danger includes sexual activity such as vaginal or anal intercourse, oral intercourse or heavy kissing where there is biting or open wounds. An ‘act’ could also include the sharing of injecting equipment.
If the act is carried out with the intent of spreading the disease then the penalty is a maximum three years imprisonment or a financial penalty. If it is an act of negligence, then the penalty is a maximum of one-year imprisonment or a financial penalty.
Under Austrian law, the following factors are irrelevant in establishing a criminal offence:
- Whether the disease was actually transmitted. The key point is whether the act caused danger. This can be a real danger or an abstract (hypothetical) danger.
- Whether the person carrying out the act thought, ‘without good cause’ (negligently), that the other person already carried the disease. [Note that if person who carried out the act thought ‘with good cause’ (not negligently) the other person was already infected, then the act is not a criminal offence.]
- Whether the other person consented to the act.
- Whether the person who carried out the act disclosed his/her disease, although this may reduce the severity of the penalty.
The Global Criminalisation Scan prepared by GNP+ shows that there have been at least 40 prosecutions in Austria resulting in at least 30 convictions. [Note that GNP+ has noted the lack of reliable data as a problem.]
It is important to note that a broad range of organisations now agree that laws that criminalise HIV transmission violate human rights and undermine public health interventions, including HIV prevention initiatives.
Legal risks can be minimized through safer sex and safer injecting practices
There have been a number of developments in Austrian case law that provide greater legal clarity on how PLHIV can minimize their legal risks in relation to the transmission of HIV. This legal information has been kindly provided by Dr Helmut Graupner, an Attorney at Law specializing in sexuality and the law in Austria.
In the lead up to AIDS 2010, the Ministry of Justice has issued an opinion clarifying the law on HIV transmissions. Whilst this opinion is a firm directive to the courts, it should be noted that it does not actually change the law and is not necessarily binding on the courts. As such, conference delegates are advised to always adopt safer sex practices to protect their health, minimize the risk of transmission and the associated legal risks.
For a person living with HIV, sexual intercourse with a condom does not constitute a criminal offence. The Supreme Court of Austria has issued a decision that sexual intercourse with a condom for a PLHIV does not constitute a criminal offence. Please note that the case law on sexual intercourse with a condom only concerns vaginal intercourse and not anal intercourse, however, the opinion of the Ministry of Justice provides that this applies to anal intercourse too.
Oral intercourse (PLHIV giving) without a condom does not constitute a criminal offence. Austrian courts have found that oral intercourse from a PLHIV to another person without a condom does not constitute a criminal offence. However, there is no case law concerning oral intercourse from an HIV-negative person to a PLHIV, so the legal position in this case remains unclear. Such intercourse should not constitute a criminal offence if safer sex practices are observed and no ejaculation into the mouth takes place. However, an HIV positive person ejaculating into the mouth of someone who is HIV negative may constitute a criminal offence. [An element of HIV transmission law in Austria is ‘abstract’ risk or hypothetical risk. Whilst there have been no cases concerning oral intercourse from an HIV-negative person to a PLHIV, due to the abstract risk element of the law, we have been advised to include this advice in the statement.]
If a PLHIV has an undetectable viral load, unprotected sexual intercourse does not constitute a criminal offence. The Ministry of Justice has provided a firm opinion that if the PLHIV has an undetectable viral load and is consistently following an effective ART regimen then sexual intercourse without a condom does not constitute a criminal offence, given that such persons are not infectious. Please note that the opinion is not binding on the courts. As such, delegates are advised to adopt safer sex practices even if they have an undetectable viral load.
The AIDS 2010 organisers recommend that all conference participants practice safer sex and safer injecting practices to protect their health, minimize the risk of transmission and the associated legal risks.
There are no restrictions in Austria for PLHIV in accessing public spaces
The Vienna public transportation system (Wiener Linien) has no regulations denying PLHIV the right to use the system and there has never been a reported incident of denied service to a PLHIV. Further, regulations denying entry to those with contagious diseases to public swimming facilities in Vienna were removed recently.Conference organizers are grateful to representatives of the Austrian Government, the City of Vienna and the Austrian Parliament for their efforts to work with us to clarify Austrian laws impacting PLHIV. We are also grateful to them for all the other support given to the conference to make it a success.
Global: UNAIDS/UNDP supports Swiss statement, announces new Global Commission on HIV and the Law
Following on from yesterday’s post about the report by the UN Special Rapporteur on the Human Right to Health, on the impact of criminalisation, UNAIDS and UNDP have issued a statement welcoming the report. (Click here for the pdf: full text below)
One of the most intriguing things about this statement is its recognition that antiretroviral therapy significantly reduces the risk of infection on an individual level, something UNAIDS has not previously supported.
It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.
The footnote following the phrase “greater impacts for individuals” states:
The Swiss National AIDS Commission (EKAF) has stated that “an HIV-infected person on antiretroviral therapy with completely suppressed viraemia (‘effective ART’) is not sexually infectious, i.e. cannot transmit HIV through sexual contact.” However, the Commission qualifies its statement, noting that it is considered valid only so long as: (a) the person adheres to antiretroviral therapy, the effects of which must be evaluated regularly by the treating physician, and (b) the viral load has been suppressed (below 40 copies/ml) for at least six months, and (c) there are no other sexually transmitted infections. See P Vernazza et al (2008), “Les personnes séropositives ne souffrant d’aucune autre MST et suivant un traitment antirétroviral efficace ne transmettent pas le VIH par voie sexuelle”, Bulletin des médecins suisses 89:165-169. Available on-line at http://www.saez.ch/pdf_f/2008/2008-05/2008-05-089.PDF
This contrasts with the extremely non-committal statement UNAIDS made jointly with WHO immediately after the Swiss Statement.
But that’s all water under the bridge, I guess. Yes, any laws that prevent people from knowing their status and accessing treatment are bad. But we must fight to ensure that treatment’s impact on infectiousness is always a secondary factor to the individual’s choice regarding whether and when to start treatment. Treatment must be treatment first, prevention second. That’s a big part of the work I’m currently doing for GNP+ and UNAIDS producing a new framework for positive prevention known as Positive Health, Dignity and Prevention.
Another significant part of the UNAIDS/UNDP statement is the first public announcement of a new Global Commission on HIV and the Law (which had been called the International Commission on HIV and Law or ICAL in documents I’d previously seen) “which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations.”
The Commission will be officially launched later this month.
Statement by the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations Development Programme (UNDP)
14th Session the Human Rights Council
Agenda Item 3: Promotion and protection of all human rights, civil,
political, economic, social and cultural rights, including the right to
development7 June 2010
GenevaMr President, distinguished delegates, ladies and gentlemen,
The UNAIDS Secretariat and UNDP thank the Human Rights Council for the opportunity to speak under this agenda item. As this Council knows, for almost 30 years, the world has sought the most effective response to the HIV epidemic. This challenge has repeatedly shown that a human rights-based approach to HIV is the most effective approach to HIV.
This fact has been long recognized by the Commission on Human Rights, this Council and by Member States. This is because human rights and legal protections are essential to enable people to get the HIV information and services they need, to avoid infection, and if HIV positive to disclose their status and get treatment. It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.
Many States continue to criminalize sexual minorities, people who use drugs, people
who engage in sex work, as well as people living with HIV. The result is that thousands of people fear or are unable to get tested for HIV, to disclose their HIV status, to access HIV prevention, treatment and care. This puts both these groups and the larger public at risk. Under these circumstances, universal access to HIV prevention, treatment, care and support will not be realised; and we will not achieve many of the Millennium Development Goals.Because of this, the Executive Director of UNAIDS, Michel Sidibé, has made one of the corporate priorities of UNAIDS to support countries to “remove punitive laws, policies, practices, stigma and discrimination that block effective AIDS responses.”
For these reasons, the UNAIDS Secretariat and UNDP welcome the report of the Special Rapportueur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. We hope it will help to generate constructive debate, and catalyse change toward a more rights-based and effective AIDS response.
The report of the Special Rapporteur underlines how the criminal law, when misused, can and does have a very negative impact on the right to health. When the criminal law is applied to adults engaging in private consensual sexual behavior – whether in the context of same-sex sexual orientation or in the context of the exchange of money for sex – it also violates the rights to privacy and liberty and acts as a major impediment to HIV prevention and treatment. Where overly broad criminal laws are applied to people living with HIV, the impact is in direct contradiction to public health efforts to encourage people to come forward to get on treatment and practice safe sex, and reduce HIV transmission in the context of drug use.
The UNAIDS Secretariat and UNDP are fully aware that, in many societies, these issues are the subject of much social, cultural and religious debate. However, the UNAIDS Secretariat and UNDP are concerned that criminalization of aspects of private, consensual adult sexual conduct singles out particular groups for invidious treatment, undermines individual and public health, and transgresses various international human rights norms. Thus, for public health and human rights reasons, the UNAIDS Executive Director and the United Nations Secretary General have called for the removal of punitive laws, policies and practices that hamper the AIDS response. Successful AIDS responses do not punish people, they protect them.
UNDP, on behalf of UNAIDS, is launching the Global Commission on HIV and the Law, which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations. The UNAIDS Secretariat and UNDP greatly hope that this Commission will help States and civil society to better use law, law enforcement and access to justice to protect all people from HIV and its impact, as well as from human rights violations in the context of HIV. We look forward to bring to the Council the findings of the Commission at the end of 2011.
Thank you.
US: CDC finally admits criminalisation is problematic
A campaign by the HIV Prevention Justice Alliance for the US Centres for Disease Control and Prevention (CDC) to confront criminalisation in the United States is finally bearing fruit.
The HIV Prevention Justice Alliance is network of organisations advocating for effective and just HIV prevention policies for the United States, coordinated by Community HIV/AIDS Mobilization Project (CHAMP) in collaboration with AIDS Foundation of Chicago, and SisterLove.
Their campaign began in 2008. The Alliance was extremely concerned that prosecutions for HIV-associated spitting and biting were doing a lot of harm.
CDC has long maintained that contact with saliva, tears, or sweat does not expose others to an appreciable risk of HIV transmission. The continued perpetuation of false information by the justice system and the media on how the virus is transmitted underscores the need for more effective HIV communication and education strategies at the highest levels that are accessible to the general public. In light of an unabated and growing HIV epidemic among certain segments of the U.S. population, we believe that it is incumbent upon the CDC to aggressively respond and provide the public with the most accurate information to reduce HIV vulnerability.
A December 2008 letter from the CDC had previously pledged to do all of what they now promise to do (see below), but when no action was taken, the Alliance sent another letter in January 2010 to the CDC’s Kevin Fenton – Director of the National Center for HIV/AIDS, Viral Hepatitis, STD and TB Prevention – “to urge CDC to take action on the steps it had identified to address the criminalization of HIV.”
In a letter signed by Fenton, the CDC has now agreed to:
- Update and expand the “Rumors, Myths, and Hoaxes” section of the CDC website by April 30th 2010.
- Update and expand CDC’s factsheet and question and answer sets (Q&As) regarding HIV transmission to better address myths and misconceptions about HIV transmission by April 30th 2010.
- Develop internal talking points to ensure CDC staff is equipped to deliver consistent, scientifically accurate information when they receive inquiries around issues of criminalization and/or myths and misconceptions about HIV transmission by April 30th 2010.
- Survey health departments, beginining May 2010 to determine whether they have collaborative relationships with criminal justice personnel and, if so, how these relationships affect HIV prevention efforts in communities.
- Use information obtained from the surveys to develop a communications package to provide to state and local health departments with the tools and messages they need to facilitate interactions with their criminal justice counterparts by August 30, 2010.
The letter concludes: “While these activities represent a concrete beginning, we realize there is much to be done to address the need for a public health, rather than punitive perspective to drive how people living with HIV/AIDS are approached in the United States. We all must continue to be forward thinking in this endeavor, and collectively we will make a broader impact. We at CDC appreciate the work organizations such as yours do in the communities affected by this disease.”
I’d like to congratulate all those involved in persuading the CDC to take its first tiny steps towards making a stand against the draconian treatment of people living with HIV in the United States. Their response is focused on the most egregious criminal prosecutions, and there is, indeed, “much to be done to address the need for a public health, rather than punitive perspective to drive how people living with HIV/AIDS are approached in the United States.”
For example, the CDC could also publically state that non-disclosure laws do more harm than good for public health, and also support the idea (which they already are exploring on a population level) that on an individual level people on successful antiretroviral treatment are as as unlikely to expose their sexual partners to HIV as those who wear condoms.
Click on the image of Mr Fenton’s pledge to read the entire letter.
UPDATE – Canada: Gay man acquitted of HIV exposure in Vancouver, risk not significant enough for liability
Update: May 12th
Yesterday, the Canadian HIV/AIDS Legal Network issued a press statement on the case, available here.
The reasons for judgment in the case (R. v. J.A.T., 2010 BCSC 766) were made public on June 2nd.
Today, aidsmap.com published a news story that I wrote last night highlighting the most salient points. Read the full story here
The case before the courts in Vancouver, British Columbia hinged on how many times an HIV-positive gay man’s boyfriend had insertive, unprotected anal sex with him, and whether the risk of him acquiring HIV was ‘significant’.
[…]
Both sides accepted that the accused had failed to disclose his status, although there had been several discussions around HIV-related risk and an agreement to practise safer sex from the start of the relationship. The accused testified that he had been diagnosed HIV-positive two weeks prior to meeting the complainant and hadn’t been ready to disclose his status at that point.
“I was still dealing with social stigma, personal prejudice; I was mentally a mess,” he told the court.
The prosecution’s expert witness, Dr Richard Matthias, testified that the per-act risk of HIV transmission for the insertive partner was similar for both unprotected anal and vaginal intercourse and estimated the risk to be 0.04%, or 4 in 10,000.
Justice Lauri Ann Fenlon ruled that unprotected sex took place three times, and that the cumulative risk – 12 in 10,000 – did not reach “the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault.”
An equally important part of Justice Fenlon’s decision was that she found the harm of HIV infection to be less than it was perceived to be in 1998.
“It’s no longer the case that people infected with HIV will develop AIDS and die prematurely,” she said. “HIV, while still a deadly virus, can generally be treated and held in check.”
This is relevant, explains the Canadian HIV/AIDS Legal Network, which worked closely with defence counsel Jason Gratl, and provided expert testimony at trial, “because, as the severity of the possible harm decreases, the higher the risk of harm must be in order to warrant criminal prosecution.”
Original post: May 7th
In a groundbreaking ruling for Canada, Justice Lauri Ann Fenlon today ruled that the risk to the insertive partner during anal sex without a condom is not ‘significant’ enough to be considered either aggravated sexual assault nor sexual assault in the absense of disclosure.
Her ruling, reported in Vancouver’s daily paper, The Province, and Canada’s gay paper, Xtra, was based on expert evidence that the per-act risk of acquiring HIV via insertive anal sex was 4 in 10,000. Of interest, the defendant had been recently diagnosed (within the previous six months) and was not on treatment but the expert witnesses’ testimony did not draw attention to the possibility of a higher risk due to higher viral load during early infection.
Full details of each day of the court case have been painstainkingly reported in a blog by Nathaniel Christopher on Xtra.ca. This report of the expert witness statement is below
An expert witness said an HIV-positive man on trial for aggravated sexual assault had a 0.04 percent chance of infecting his partner every time they had sex. Dr Richard Mathias told the court he believed HIV transmission rates in anal intercourse are comparable to those in vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which can travel up their urethra. He mentioned that in the case of uncircumcised men the risk is even higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.
Crown counsel Brendan McCabe asked Mathias if he was aware of any individual incidents in the gay community of the virus going from an HIV-positive receptive partner to a negative partner. “No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act but that number would multiply with each encounter.
McCabe suggested that if the accused and complainant had had five unprotected encounters then the risk would be 20 in 10,000. Mathias said the risk is comparable to protected sex between an HIV-negative bottom and an HIV-positive top.
The complainant testified that he had engaged in insertive anal sex a total of five times with his former partner; the defendant testified that this happened only once, and that he had thought his partner was wearing a condom at the time. Justie Fenlon ruled that unprotected anal sex had taken place three times, but that a 12 in 10,000 risk was not significant enough to be considered a criminal act. Transmission did not occur.
I have concluded that the Crown has failed to prove that the risk of HIV transmission here — 12 in 10,000 sexual encounters or 0.12 percent — meets the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault.
This verdict should not be understood to mean that the court condones the behaviour of the accused. He had a moral obligation to disclose his HIV-positive status to his partner so that the complainant could decide whether he wanted to take the risk of engaging in unprotected sexual activity with the accused, no matter how small that risk. But not every unethical act invokes the heavy hand of the criminal law.
A previous posting yesterday, reposting an excellent article from Xtra, highlighted the potential significance of the case. It will be interesting to see what others make of it. More on Monday.
Canadian HIV law at a crossroads (Xtra.ca)
Reposting this article from Xtra.ca published online today. Tomorrow’s verdict (due to be issued 9am Vancouver time) will be as important to people living with HIV – and public health – in Canada as the outcome of UK’s general election. Will provide full details of trial and commentary on Monday.
Canadian HIV/AIDS Legal Network welcomes Crown decision to drop criminal charges in Hamilton HIV case: guidelines needed
Press Release
AIDS ORGANIZATION WELCOMES CROWN DECISION TO STAY CRIMINAL CHARGES IN HAMILTON HIV CASE
But guidelines needed to avoid unsound, unjust prosecutions
TORONTO, April 22, 2010
The Canadian HIV/AIDS Legal Network welcomed the announcement at Hamilton’s courthouse this morning that the prosecution is staying the criminal charge of aggravated sexual assault against Justus Zela. He was charged in February 2009 after an ex-partner alleged they had oral sex without Zela disclosing that he had HIV. The ex-partner has not tested HIV-positive.
“We’re pleased with the Crown’s announcement this morning, but it must go further. This case should never have proceeded in the first place, and the charges should be withdrawn entirely,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network. “There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”
According to information available to the Legal Network, the charges were based solely on the claim that oral sex had taken place on a few occasions — and mostly with Mr. Zela performing oral sex, rather than receiving it.
“This case is yet another example of why the Attorney General of the province should work with community groups to develop some clear guidelines for prosecutors and police about when criminal charges are, and are not, warranted,” said Elliott. “Guidelines should be informed by the evidence about actual risks of transmission. They should also consider the damage that misusing the criminal law does to individual lives, and how it undermines public health, including HIV prevention efforts, through contributing to misinformation, fear and stigma.”
In 1998, the Supreme Court of Canada ruled that a person living with HIV has a duty to disclose his or her status to a sexual partner only if there is a “significant risk” of transmission, but much uncertainty remains about what this means.
Over the past decade, there has been an alarming increase in both the frequency and severity of charges against individuals with HIV for not disclosing their status to a sexual partner. Prosecutors have pursued serious assault charges even in circumstances where the risk of HIV transmission, already statistically small in any single sexual encounter, has been lowered further by the responsible practise of safer sex. In light of this “criminalization creep,” it is all the more urgent to address legitimate questions about where, as a matter of public policy, we should draw the lines.
Leading organizations and members of the HIV community — including health care providers, service providers, people living with HIV, academics and lawyers — have questioned the expansive use of the criminal law with respect to HIV non-disclosure in Canada. While recognizing that there is a limited role for criminal law on this issue, many legitimate concerns exist as to the impacts of this trend. Not only is studying, evaluating and critiquing the application of the criminal law appropriate, it is absolutely necessary to ensure it is used sensibly and fairly.
About the Canadian HIV/AIDS Legal Network
The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and human rights issues raised by HIV/AIDS.
“Criminal Law and HIV”
A series of 5 info sheets on-line at: www.aidslaw.ca/criminallaw
US: Media, police, judge conspire in ‘hate crime’ against gay HIV-positive man in biting case
I am so mad I could spit and bite! I’ve seen a lot of bad reporting and bad legal decisions during my time blogging, but never before have I seen the media conspire with the criminal justice system in such a calculated, prejudiced, stigmatising, and ultimately harmful way.
A gay man from a small city in Michigan who has been harrassed and beaten up by neighbours for years, has been charged with “assault with intent to maim, assault with intent to commit great bodily harm and possession or use of a harmful device” after the latest assault resulted in biting his neighbour the lip whilst he was defending himself.
The story first appeared on October 30th in the Detroit News.
Although police allege [the accused] was the lone attacker — biting neighbor Winfred Fernandis Jr., 28, on the lip following the Oct. 18 confrontation — [the acccused] says he’s long been the target of bigotry on his street, and Fernandis, along with several of Fernandis’ family members, took turns beating him.
“I have no memory of biting him,” said [the accused], who is due in 41-B District Court for a preliminary hearing Monday. He divulged his HIV status after questioning from the media. “This person has been threatening me for years. The hatred needs to stop.”
“He divulged his HIV status after questioning from the media.”
How did that happen? Well, Fox News did some ‘investigating’ and discovered he was HIV-positive. They asked him to confirm it on camera – he did. They then told the bitten neighbour on camera. That’s when it got ugly.
Here’s the Fox News report.
Since HIV is involved, Clinton Township District Court Judge Linda Davis said during a preliminary hearing on November 2nd that just knowing he was HIV-positive and biting the neighbour is enough to sustain these very serious charges, reports a second story in the Detroit News.
“He knew he was HIV-positive, and he bit the guy,” Davis said. “That on its own shows intent.”
No it doesn’t, Judge Davis, because saliva from a bite does not expose someone to HIV. Now she is implicated, along with the police and the complainant (and his wife), in a hate crime.
“I am still maintaining my client is the victim of a hate crime,” [the man’s attorney, James L. Galen Jr.] said. “He will be exonerated. This is the very first battle in what I think is going to be a long war.”
A pretrial and arraignment will take place on November 16th.