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Tuesday, 30 November 2010

Global: Powerful personal testimony and video highlight criminalisation concerns

IPPF (the International Planned Parenthood Association) has been campaigning against the criminalisation of HIV non-disclosure, alleged exposure and non-intentional transmission for the past few years, and this World AIDS Day they are highlighting their 'Criminalise Hate Not HIV' Campaign.

They have produced a beautifully shot two minute video highlighting their ongoing campaign, which you can watch below.

IPPF has also just launched Behind Bars - a collection of interviews that highlights the effect criminal laws are having on people’s working and private lives. I was particularly struck by two testimonials from individuals with whom I have had some prior contact.

Jan Albert is a Professor of Infectious Diseases and has worked at the Swedish Institute for Infectious Disease Control (SMI). Currently he works as an HIV researcher at the Karolinska Institute. He has been an expert witness in several trials; served as the expert reviewer for the 'Proof' chapter of NAM's HIV and the criminal law; and contributed to my recent news story on phylogenetic analysis. He was forced to do an about-turn in 2008 regarding the SMI helping police with their criminal investigations.

Here's an exerpts of what he says in Behind Bars

Since I’ve been an expert witness in court trials, my personal opinion regarding people living with HIV (PLHIV) has changed. In my experience the accused persons are seldom ‘raw criminals’.  Instead, they are people who have been careless or even reckless. There  are many reasons for neglecting to inform sexual partners about HIV status, including denial. None, or very few, have had the intent to transmit HIV which is how these acts often are described by the media....I’ve seen prejudice in the media reporting of these cases, but that’s  how the media works and I have learnt how to deal with it. They often  want the sensational and spectacular news, especially tabloids. I wished  there was place in the media for a more nuanced view; sometimes we see  it, but not very often...Do we want to turn a proportion of our population into potential criminals every time they have sex?

Marama Pala from New Zealand also tells her story on Behind Bars.  She had actually emailed me more than a year ago wanting to tell her story on my blog, and I was happy for her to do so.  I prepared a version of her email for her approval but never heard back (I had especially wanted to know how to credit her - using her real name or a psedunoym).  Now that IPPF have published her name and story, I'd like to post what she wrote for me, which is similar, but a little more detailed.

Marama Pala was the key witness for the prosecution when Kenyan musician Peter Mwai was prosecuted for criminal HIV transmission in 1993.  Now an advocate for Māori living with HIV, she writes about her experiences and lessons learned exclusively for this blog.


I was 22 years old when I had a sexual liaison with Peter Mwai that changed my life forever (23 July 1993). It was six weeks later that I saw a picture of his face on the front of a national newspaper with the caption, “Face of Fear”.  The article encouraged anyone that had contact with Peter Mwai to ring a detective in the New Zealand police. The detective asked, if I received a HIV-positive blood test would I help stop him from infecting other women? Not knowing what I was volunteering for, I said yes. The trial took over two years.

This was the first time that legislation written in 1963 was put to the test with charging someone with ‘wilfully infecting someone with a disease’ (maximum sentence 14 years). It was when the prosecution was unable to prove beyond a doubt that Peter Mwai was deliberately infecting people that charge was lessened to Grievous Bodily Harm (maximum sentence 7 years).

It was alleged that Peter Mwai infected an array of women before June 1993, and after six women – negative and positive – came forward and spoke to the police, they were able to charge him with reckless endangerment. I was the only one they could find who was infected after June – the date where the prosecution were able to provide evidence that he had knowledge of his HIV status. I’ve met 9 women infected by Peter Mwai.  It is presumed there are many more.

I had the condoms available, and during negotiating for safe sex, I was told that he was negative, he had a healthy child, he was healthy and why would he need to wear one and they hurt...  I trusted him. Bear in mind that 1993, negotiating for safe sex as a woman in New Zealand was almost non-existent, safe sex education was non-existent, and the only reason I had the condoms was because a friend had given them to me.

The court trial began. There was no doubt in my mind, should he be released back in to New Zealand society, that he would continue with his promiscuity, putting others at risk. He was found guilty.  He served five years in prison, was deported on release, and shortly after died in Uganda of TB.


I went in to hiding until 2005 due to unwanted and degrading media interference. It was when the situation within my ethnic community (Indigenous New Zealander Māori), was being threatened by HIV, that I became an advocate for Māori. We started a non-profit organisation called INA (Māori, Indigenous & South Pacific) HIV/AIDS Foundation.

On reflection, and spending time in the Pacific Islands reviewing the criminalisation of HIV in Papua New Guinea (my husband’s country) – first Pacific country to have HIV specific legislation – I began to recognise that the hyper-emotive ‘knee jerk’ reaction and subsequent dramas during the trial may have been a ‘tad’ heavy handed.

I started to become aware of how the criminalisation of HIV can cause stigma and discrimination for those living with HIV.  I then started to notice the differences that criminal law had on different cultural backgrounds, producing varied levels of severe to mild discrimination.  I also saw the agendas of all those who have a stake in this type of legislation. I’ve found the entire area to be a political minefield.  Whose rights are we wanting to protect? The rights of negative people wanting to be safe from infection? Or the rights of positive people to be protected from stigma and discrimination? It’s been said that the sway of the pendulum will always politically favour the majority. In Papua New Guinea’s HIV laws, they do have clauses for both sides: reckless infection of others, and discrimination of PLHWA.

INA has a philosophy that we are all responsible for HIV, and when all take responsibility, the fight will be won! Negative/Positive all have equal responsibility for HIV. HIV is an individual and public health concern.

In saying that, our women and men (Māori) have difficulty in negotiating safer sex and consensual sex. We have no programmes available to target either behavioural changes. Safer sex education is also lacking for all ages within cultural demographics. Sensitivity to cultural laws and beliefs on sex are not considered at all.

I’ve been quoted before saying that perhaps counselling and therapy would have been an option for Peter Mwai. Perhaps name, blame and shame, is not the best management of someone who puts others at risk.

I now believe that New Zealand’s criminal law is an ineffective and inappropriate tool used to address HIV risk behaviour. The psychological and mental state of a person who puts others at risk is not addressed in criminal law. Punishing them may have the opposite effect.  PLWHA are living longer with medication: would prison create a more calculating person that would be released eventually and continue to act with reckless disregard? There is no evidence to suggest that incarceration will offer any significant benefits in changing behaviours.

Criminal charges do little to stop the spread of HIV, within some cultures it dissuades people from being tested, having an attitude of ‘ignorance is bliss’, then they can’t be charged or fear of a positive test resulting in cultural violence, stigma and discrimination. Criminal charges do, however, divert resources and attention away from prevention initiatives already in place that are having an impact on reducing HIV transmission.

Most PLWHAs take responsibility for their bodies and their virus, practicing safer sex and disclosing to partners when necessary. I reiterate, it’s everybody’s responsibility to reduce exposure to any STI. Criminalising HIV puts the entire onus and responsibility on the PLWHA.


My organisation, INA, would also like to acknowledge that ‘wilful’ or ‘reckless’ HIV infection continues to be an issue in New Zealand, with no criminal charges or spotlight placed on it in some communities. The cases mentioned above all involved women, with the most recent cases involving both men and women.  Sadly amongst our Men who have sex with men community, the prevention message targeting them the most as ‘High Risk’ has also created an acceptance of balancing the risk and life style. With many transmission of HIV being completely hidden with an acceptance attitude.

Mental illness, significant cognitive and/or psychological impairment, or a reasonable apprehension of harm adds to the compounding situation, with criminal charges doing nothing to respond to this reality or prevent further infection in such circumstances.

There has been no National Review of HIV in New Zealand, giving us a factual ‘picture’ of the situation in New Zealand. Even with recent criminal charges, there has been no directive on assessing the situation.  The complexities (homophobia, sexism, racism, stigma and discrimination) are being ignored and ‘panic’ is motivating decisions. That may be irreversible should these decisions become policy. All legal and policy responses would be best based on the best available evidence, HIV prevention, care, treatment, support and respect for human rights.

We support and advocate for a strong national policy response to HIV prevention and transmission.  We support a National Review of present criminal law in relation to HIV and review of support services available. And the exploration and development of alternatives to criminal charges and HIV, incorporating alternative responses addressing the individual, environment and social contexts involved.

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