Norway: Dissenting Law Commission member, Kim Fangen, 'stands alone'

Norwegian Law Commission member, Kim Fangen.

Last week's publication of the Norwegian Law Commission's disappointing report was "a crucial moment for us in Norway – actually for all HIV activists in the Nordic countries," says Kim Fangen, the only member of the Commission to vote against the use of a specific law to control and punish people with HIV and other sexually transmitted infections.

Kim's alternative vision, as detailed in Chapter 10 of the report (only available in the full Norwegian version, not the English summary, but translated into English by the HIV Justice Network and included in full below) is one of a supporting and enabling environment, where people living with HIV are seen as part of 'the solution' and not 'the problem.'

"It is not through criminal law that we reduce the spread of HIV," he writes. "I believe that HIV and other sexually transmitted infections are solely a health issue. That's where the focus should and must be, if one wants to prevent more infections. This means that we must change our mindset and change our course from criminal regulation to a health-related approach."

His solution is a uniqely Norwegian version of the new paradigm of HIV prevention for people living with HIV, known as Positive, Health, Dignity and Prevention –  a comprehensive approach to supporting people living with HIV with their prevention and social needs, not through fear or coercion but through empowerment and with dignity.  Much of the solution is already there in Norway's HIV Action Plan - but as Kim notes, with a few exceptions, little of the plan has actually been actioned.

In his first interview since the Commission report was released, Kim tells the HIV Justice Network how feels about the report and what the rest of us can do to help effect a change for the better to mitigate the Nordic region's overly harsh and punitive approaches to people living with HIV.

Q: As the only person openly living with HIV on the twelve person Commission, what did you hope to achieve?

When I was asked to be asked to be part of the Norwegian Law Commission, I was very happy and proud.  I, and many of my friends and colleagues living with HIV, believed it was a promising sign that they had reserved one of the Commission's twelve seats for someone living with HIV.

I actually believed that there was a genuine will and desire to investigate the issues raised in our mandate and to produce recommendations that hopefully would point Norway in a new direction, towards decriminalising potential HIV 'exposure' and unintentional transmission.

I did not think that it would be easy, but I thought it would be possible. I honestly thought that finally there would be no need to single out people with HIV as group so hazardous that Norwegian society felt the need of a specific law to protect itself.

What I never envisaged was that, in the end, I would be standing alone.

Q: When did you realise that you point of view was not going to be supported by the rest of Commission?

It was quite early in the process. I realised that not only was it going to be difficult, but that I was quite alone not wanting a specific law.

I really feel that the reason for my inclusion on this Commission was not to learn more from those of us living with HIV, but was instead a kind of tokenism – by having a person living with HIV on board I believe they thought they would be able to silence us once and for all.

Q: What disappoints you the most about the report?

I cannot help feeling that a great opportunity has been lost and the goodwill of people with HIV misused. This is a sentiment I share with many of my friends and colleagues both at home and abroad. Many of us are so very disappointed. We honestly believed we would finally experience a change now,  just as we, ironically, are about to commemorate 30 years since the first Norwegian was diagnosed with HIV.

And so I am afraid that we will not get the debate we so desperately need. I worry that this report will provide politicians with easy solutions, something Norway will not benefit from.  

Q: Is there anything positive in the report's recommendations that you would like to highlight? For example, I was impressed by the recognition that people with HIV (and other communicable diseases) require "psychosocial support to enable them to handle the risk of infection properly, and assistance in dealing with any underlying problems such as mental illness or substance use."

I'm glad that you pointed this out. I do feel that I have been listened to when I have spoken of supporting people living with HIV, and the clinics can do much more to help in guiding and strengthening each individual. This is the kind of work I am directly involved in myself.

Q: Do you think the report's content and conclusions are completely consistent with Norway's commitments to human rights and in terms of making laws based on evidence and not ideology?

No, I do not. I have on several occasions talked about our responsibility to practise what we preach. I do not think Norway is doing that.

Q: How might the report impact the rest of the Nordic region?

HIV and the law are being debated and discussed all over the Nordic region. All of the four countries are at different stages but our goals are the same, to end the overly broad criminalisation of HIV.

My hope is that Sweden, Denmark, Finland and Norway will join forces. We will be so much stronger if we pull together. Next year will we will be commemorating 30 years since Norway had its first HIV diagnosis.  We, in the newly-established HIV Patient Network will be using that to the fullest and, of course, criminalisation will be on top of the list.

Q: The process will take another 18 months before parliament decides on whether or not to enact or abolish a specific criminal law. What are your plans?

My only hope now is that the international response to this report will be so substantial, so clear, and so loud that it will have an impact on Norway's politicians.

I am hoping to organise a joint Nordic meeting in Oslo sometime during 2013, preferably before the deadline for the hearing letter goes out, when we are still able to influence the process before it is finalised some time in 2014.

If we can thoroughly examine the situation in all of the Nordic countries, invite politicians, medical and legal practitioners, experts and specialists in fields like sexuality, ethics and human rights, as well as members of the international civil society, we should be able to strengthen our arguments and support those in office who actually can directly influence the debate.

In the meantime, for those who haven't already signed the Oslo Declaration on HIV Criminalisation, please take a moment to read it and support our efforts. I would like thank everyone who contributed, who made this possible, and especially to the HIV Justice Network.  I know that it has already caused a stir in Norway, and I feel that there is so much more to gain from it. It's like a tool that is still in its wrapping, and it has yet to reach its full potential. 

Below is the full English translation of Kim's submission to the Commission, outlining his alternative vision, from Chapter 10 of the report.

One of the committee members, Kim Fangen, lives with HIV and has been involved in working in this field for many years.

As stated during the assessments in Section 11.2.1.2, Mr Fangen says that there should be no special penal targeting disease transmission directly between humans. Mr Fangen believes that any criminal proceedings should take place using the general penalty provisions of bodily harm, and that these penal provisions should only be applied where the perpetrator acted with the intent to infect another, and the disease is transferred.

The rationale for this position is stated in the following that Mr Fangen has written on this matter:

New time. New inspiration.

HIV has been a part of our global reality for over 30 years. It is estimated that 60 million people have been infected during this period, 35 million of whom are alive today. For the first time in the history of HIV in the world, data show that the number of people that are newly diagnosed HIV positive is on a downward trend. This is primarily because many people with HIV have access to treatment. Treatment not only allows people with HIV to live a long healthy life, but the majority who are on treatment have a fully suppressed HIV viral load and are thus very unlikely to be infectious. The US Centers for Disease Control and Prevention (CDC) recently reviewed the latest research data and concludes that antiretroviral therapy reduces the risk of a person with HIV transmitting the virus to an HIV-negative person by 96%. UNAIDS has begun to talk about a world without HIV in its 2011-2015 strategic plan, 'Getting To Zero'. Medical progress has thus changed the situation in a very positive direction. This change should also be reflected in legislation and case law.

However, the situation is not only positive. In some countries and in some groups, we are seeing an increase in the number of new HIV diagnoses. In Norway, the number of annual new HIV diagnoses among gay and bisexual men and other men who have sex with men has tripled since 2002. This increase is very serious and requires that we strengthen and develop prevention among both HIV-negative and HIV-positive individuals.

Does HIV belong in the criminal code?

As person living with HIV, my primary focus has been on HIV when the committee has discussed details of the currently adopted provisions for serious communicable infectious diseases in the 2005 Penal Code § § 237 and 238. Most of my arguments stem from the experiences we have had with HIV in the applicable provisions of the 1902 Penal Code § 155, which for years has rightly been called the 'HIV paragraph'. As you know, this is not an HIV-specific law, but in practice it has, almost without exception, been used to prosecute HIV. There are only a few cases where it has been applied with another communicable disease (respectively, hepatitis B and hepatitis C).

I think that HIV-related work, both in terms of caring for people with HIV, and preventing new infections, has not well been served by such legislation, which stigmatises  those of us with HIV and creates the perception that were are potential criminals, and does not take into account that people with HIV have the right to a good sex life. The legislation does not relate to the psycho-social challenges it means to live with HIV, and is not adapted to the fact that the reduced quality of life and difficulty in coping with safer sex are often intertwined. The legislation has not been clear on what constitutes unlawful sexual behaviour, and criminal liability is not consistent in relation to current knowledge about HIV and the risk of transmission.

Furthermore, I believe that the implementation of this legislation violates the fundamental principles of equality before the law. It seems as if the law is both random and unfair when only a few cases have been filed in recent years, despite the fact that several hundred people are diagnosed with HIV each year. It also seems unfair and counterproductive that all responsibility should rest on those of us who are familiar with our own HIV status, when we know that many are not aware of their own status and that new infections require HIV-negative individuals to choose to have unsafe sex.

In light of the increasing number of new HIV diagnoses among gay and bisexual men and other men who have sex with men, one can rightly ask what does that suggest for this law in terms of HIV prevention? My contention is that it has not served its purpose, whether viewed from a public health perspective or an individual prevention perspective. HIV is no longer a threat to public health, as one assumed it was going to be early in the 1980s. We have been aware of this for many years now. Even before effective treatment arrived, this was a fact. Nevertheless, it seems that the 'epidemic' mentality lingers in the minds of many people.

A public health perspective, however, is important when it comes to the spread of other communicable diseases through air, water and food. I have therefore, together with a committee unanimously decided that § 238 should be amended to apply only to such infections, see chapter 11 and the committee draft laws in Chapter 14

It is not through criminal law that we reduce the spread of HIV. I believe that HIV and other sexually transmitted infections are solely a health issue. That's where the focus should and must be, if one wants to prevent more infections. This means that we must change our mindset and change our course from criminal regulation to a health-related approach. Both partners should be responsible for their own sexual health, but this should not be linked to punishment. I do not believe that criminal law is a suitable tool for regulating health-related behaviours. Using the Penal Code, however, can make it appear as if the Government has been pro-active on this issue when instead it actually creates a false sense of security.

Decriminalisation

I believe that one should not criminalise unprotected sex and consequently the transmission of sexually transmitted infections. In sexual relations between two equal  partners who voluntarily decide to have sex, no heed is given to criminalisation / criminal law at home, regardless of whether HIV is transmitted or not. I believe that punishment should only be used in cases where you can prove that someone has intended to transmit a communicable disease and succeeded in doing this. Then the general provisions on bodily harm can be used, but in all other cases general laws on 'offences against the person' should not be used.

My suggestion therefore implies a clear decriminalisation, as I suggest that prosecutions should only occur where there is intent in the form of wilful intent and infection actually occurs. Transmission that occurs through dolus eventualis [recklessness] should, I suggest, not be prosecuted, even if infection actually occurs. This also applies to cases where there is only a negligent state of mind. If there has only been the potential for exposure, i.e. infection has not occurred, as I have already suggested, this should not be punished.

People with HIV - an untapped resource

Those of us who are living with HIV want to be involved in reducing infection rates. We want to be "part of the solution" and not be seen as a "problem". Just as our society desires that all groups of patients are equal partners in health, I believe that people with HIV in particular are an important group to include. I think we are an untapped resource in prevention. We have unique knowledge in that can say something about why we were infected. This knowledge has so far not been made use of - no one asks us about possible underlying / contributory reasons why we were infected. Here, there is a great potential in terms of prevention of new infections, and we want to be involved in this work.

Common goals

Whatever we may think of the Penal Code as all actors within the HIV field (whether government, organisation or activist) a common goal is to prevent people from becoming infected with HIV.

How do we reach this goal? Measures should focus on the HIV-positive and HIV-negative. We must strengthen and set clear requirements for disease control. We need to improve the coping ability of all people living with HIV. We need more testing, more often. Those who are newly diagnosed who wish to start treatment should be allowed to do so. We need to focus on the importance of risk/harm reduction, and realise that it can make a substantial contribution to 'traditional' prevention. Doing even something right is better than doing nothing at all. 

There is no reason that Norway might not become the best in the world in this area - we have the knowledge, skills and the economy. We have a clear situation, and we are able to reach everyone.

Sexually transmitted infections are a part of our shared reality. It's not just HIV that is increasing in scope, but other infections. There are an increasing number of challenges, such as treatment-resistant gonorrhoea. We do not yet know the extent to which this will continue and what consequences will ensue. The more times a person is treated for a sexually transmitted infection, the greater the risk of complications or of developing resistance potentially resulting in a chronic condition. Although this information has reached the majority of the population it does not change the habit of having unprotected sex. We can surmise this from the ever increasing number of cases of sexually transmitted infections.

We should find a way to prepare a comprehensive plan as to how Norway should tackle all areas of sexual health. This plan must address both the dark and light sides of sexuality and must deal with sexuality throughout our life. Such a plan must aim to enhance the general population's sexual health, while also dealing with special measures for vulnerable groups with special challenges, such as gay and bisexual men and other men who have sex with men, refugees, asylum seekers and their families.

This could be done by a committee that will have the mandate to prepare an action plan to enhance overall sexual health, including prevention of sexually transmitted infections. The current national strategic plan for improving sexual health is too one-sided by focusing on the prevention of unwanted pregnancies. Such a committee should have representatives of health authorities as well as representatives of relevant groups and relevant organisations.

National Action Plan

There are many HIV-positive people who believe that the National Action Plan 'Acceptance and Coping, 2009-2014' is a very important and appropriate plan for HIV prevention efforts. Here are six ministries and several agencies that are committed to comprehensive efforts in HIV-related work by defining objectives and strategic actions in a number of areas. Some of this is already implemented, but much remains to be done, and the recent mid-term conference showed that things are tough and that there is great frustration among the players.

What has been implemented includes the initiation of the first learning and activity courses for people with HIV. This course was developed through a partnership between The Health Information Centre and Department of Infectious Diseases, both at Oslo University Hospital, and the newly established Council for Patients with HIV has also contributed. Here, among other things, the mastery of sex life is an important part. This has been a successful pilot project that is supposed to be a constant for all who are living with HIV, and to all who are diagnosed with HIV, regardless of nationality, ethnicity and sexual orientation. We believe this is an important service for this patient group that until now has received little follow-up beyond the purely medical field. Another important measure implemented under the HIV plan is the training of health professionals who work with people with HIV to assist in their conversations with patients about changes in health-related behaviours, including sexual behaviour. The tool used is a method called motivational interviewing (MI) which increases the patient's motivation to change. In 2011 almost 100 health professionals participated in such courses organised by the Directorate of Health. More such courses are needed, and these courses should be offered at different levels, so that MI is an integral part of care.

Such courses for both patients and healthcare providers is something that can increase both the efficacy and quality of life for people with HIV and are therefore very important health promotion and HIV prevention measures. Earlier initiation of treatment and increased focus on testing for HIV and other sexually transmitted infections are other measures that work to prevent new infections.

Apart from the above-mentioned exceptions, very few of the other parts of the HIV plan have been completed. Why has this happened? Why has this work come to a standstill? Why have we not managed to achieve several more goals outlined in the plan? Is it due to a lack of real will of the health authorities and other ministries to drive this plan forward? Have they declared themselves satisfied with making a good plan, and then delegated the responsibility for implementation to civil society and health care providers? Success requires national management and monitoring.

The way forward - a new tool offers new opportunities

I believe we have a unique opportunity now to show other countries how HIV and other sexual transmitted infections can and should be dealt with in a constructive and inclusive manner. By focusing on sexual health in general, and for the whole population, we could experience a reduction of HIV and other sexually transmitted infections. We must work to motivate and to inspire each individual and thus safeguard the best interests of society.

It's a new era that should inspire all who live and work in this field. We know so much more now than when HIV was incorporated into the Penal Code. We have completely different opportunities today to fight this virus, by helping as many as possible to independently maintain their health. This is where we can help to reverse the negative trend we are experiencing nationally, and it will also give us an opportunity to show the way internationally. There are many eyes focused on Norway these days who are most interested in how we choose to move forward with this challenge. We have a responsibility to make this our opportunity to achieve the very best possible outcome.