Criminal HIV Transmission

Czech Republic: 18 year-old pregnant woman gets 2 1/2 years for HIV non-disclosure

2012-02-02T14:39:00.003Z

An 18 year-old pregnant woman from Eastern Bohemia in the Czech Republic, coinfected with both HIV and Hepatitis C, was sentenced to 2 1/2 years in prison last week for not disclosing that she was HIV-positive before having unprotected sex with her 19 year-old boyfriend. The judge, Miroslav Veselský, classified the 'crime' of HIV non-disclosure as 'attempted grievous bodily harm'.

This is only the fourth-ever prosecution for HIV non-disclosure prior to unprotected sex in the Czech Republic of which we are aware - and the first-ever prosecution of a woman. A young pregnant woman at that. A young pregnant woman who spent her entire life in foster homes and juvenile institutions according to the two news reports of the case here (English translation here) and here (English translation here).

She was diagnosed with HIV and hepatitis C at the age of 15 and a year later was treated for dependence on methamphetamine and heroin. After turning 18 she was moved to a social care home (where, according to Czech law, people with HIV must disclose their status), and the social care staff monitored her private life.

When staff learned that she was going out with a person named in the news reports as John N., they told her to disclose her health status to him or face the consequences.

"She told me that she has hepatitis C. The HIV - she said nothing, probably wanted to be with me and she was afraid of losing me."

It transpires that John was not a complainant in the case, but simply a witness. It was the care home staff who notified the police. In fact, John stated that although almost all of their sexual encounters were unprotected, he acquired neither HIV nor hepatitis C. Another partner, who went out with the young woman after her relationship with John ended also testified that he knew that the the young woman was HIV-positive and wore a condom.

The young woman was actually tried in absentia, at her own request, because she is eight months pregnant. Justice Veselský told the court he had never come across a case like this in 30 years on the bench and although the usual sentence for attempted grievous bodily harm is five to twelve years, he listened to appeals from both the defending and prosecuting counsel and decided to be "pragmatic" and "lenient" with the 2 1/2 year sentence.

The young woman has already served four months in custody, and can apply for parole in 15 months. This means, of course, that she will give birth in prison. In early February she will be taken to a detention hospital in Prague to prepare for childbirth.

Canada: Urgent sign on statement - ask Supreme Court to stop inappropriate criminalisation of people with HIV

2012-01-25T10:07:00.000Z

On February 8, 2012, the Supreme Court of Canada will hear two landmark cases on the issue of criminalisation of HIV non-disclosure in R v. Mabior and R v. DC. The Court’s decisions in these two appeal cases will have profound implications not only for people living with HIV, but also for Canadian public health, police practice and the criminal justice system.

There has been a marked increase in the frequency and severity of criminal charges for HIV non-disclosure in Canada where more than 130 people living with HIV have been charged in less than 15 years. This includes numerous cases in which their activity posed no significant risk of HIV transmission. Simply put, this is a miscarriage of justice.

The Canadian HIV/AIDS Legal Network is calling for signatories from international organisations and professionals working on issues related to HIV and public health and/or law to endorse the following statement by Wednesday, Feb 1st at 5:00 p.m. EST.

IN ADVANCE OF LANDMARK SUPREME COURT CASE, SUPPORTERS WORLDWIDE CALL ON CANADA TO STOP CRIMINALIZING PEOPLE LIVING WITH HIV

Monday, February 6, 2012 – Canadian criminal law requires people living with HIV to disclose their status before engaging in behaviour that involves a "significant risk" of transmitting the virus. Yet people have been charged, and convicted for not disclosing their status, even though their activity did not pose a significant risk of HIV transmission. This is a miscarriage of justice. Further, it has contributed to a climate marked by anxiety, fear, stigma and misinformation that undermines HIV counselling, education and prevention efforts. This puts all Canadians at greater risk.

On February 8, the Supreme Court of Canada will hear two landmark cases on this important issue. We, the undersigned, respectfully ask that the Court use this opportunity to explicitly reconfirm that people living with HIV are not criminals in cases where the threshold of significant risk is not met – including cases where condoms are used or the HIV positive person was being successfully treated with antiretroviral drugs. We ask that the Court instruct lower courts that significant risk must be determined on the basis of the best available scientific evidence, not on assumptions, prejudice or fear.

Finally, we call on the provincial and territorial Attorneys General to follow suit and adopt guidelines to limit prosecutions in cases of HIV non-disclosure. These prosecutions are not helpful in putting an end to this epidemic, and the radical over-extension of the criminal law is counter-productive and damaging.

Please send your signature as you would like it to appear on the signatory list – including your name, organisation, title and geographic location – to info@aidslaw.ca. If your organisation will sign on in full, please indicate that as well and include the French translation of your organisation’s name if available.

If you are an individual without an organisational affiliation or professional designation and you would like to also endorse this statement please do so to the email address above.

For more information on criminalisation of HIV non-disclosure in Canada, please visit http://www.aidslaw.ca/stopcriminalization.

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Austria: Man accused of criminal HIV transmission fights "unconstitutional" forced blood test

2012-01-18T11:46:00.000Z

A man in Austria is taking a case to the Constitutional Court that challenges the forcible testing of blood for HIV (as well as for use in phylogenetic analysis) that was legalised on 1 January 2012 through an amendment of the Criminal Procedure Code by the Prevention of Terrorism Act 2011. He is being supported by Rechtskomitee LAMBDA, whose president, Dr. Helmut Graupner, is also his defence counsel.

Full details of the case, and the problematic application of this law, from the Rechtskomitee LAMBDA press release issued today are included in full below (English version is slightly modified from the original release; German is the original.)

From 1 January 2012: Forced Hiv-Testing: Rechtskomitee LAMBDA supports case in the Constitutional Court

The Prevention of Terrorism Act 2011 also amended the Criminal Procedure Code. It makes forcible HIV-testing legal as of 1 January 2012, despite the fact that the Constitution prohibits taking blood by force. A case has already been brought to the Constitutional Court.

The Prevention of Terrorism Act 2011, passed by federal parliament in October 2011, legalizes taking blood by force in order to prove the misdemeanor of Endangering Human Beings by Transmittable Diseases (§ 178 Criminal Code). Up to now forcible blood taking (in the case of not intoxicated defendants) had been restricted to sexual felonies or other felonies incurring a maximum penalty of five years.

Since 1 January 2012 this changed, despite the fact that the Constitutional Court prohibits forcible blood withdrawals, as no one may be forced to supply his body as evidence against him. The first case challenging this new power of the criminal police has already been taken to the Constitutional Court.

The applicant, who has no criminal record, is HIV-positive and asks the Constitutional Court to strike down the amendment. The state prosecutor has started proceedings against him under § 178 CC after another HIV-positive man had accused him of infecting him with HIV. Indeed the two men had sex with each other years ago, but in accordance with the safer sex rules propagated by the Ministry of Health and the AIDS Service organisations (oral sex without ejaculation into the mouth).

Blackmailed and reported to the police

The accuser, who has a massive criminal record of violent, drug and property offences, reported the defendant to the police years after the sexual contact and only after the man refused to fulfil his considerable financial demands. In addition the accuser admitted during his interrogation that he had unprotected sex with others, and he had searched for casual sex (“sexdates”) in the internet displaying in his profile the information “Safer Sex: Never”. Even more so the man, according to his own depositions, is addicted to heroin and thus had been exposed also to other ways of transmission than the sexual one.

The case against the accuser (for aggravated blackmail) has been dropped immediately after the interrogation of both men due to "conflicting depositions". Not so the case against the defendant for endangering by transmittable diseases (which offence is fulfilled just by engaging in unsafe sex without the necessity of causing infection). Also in regard to this offence there were "conflicting depositions" but the prosecutor wanted a blood test (for phylogenetic analysis).

Potential for conviction of innocents

A phylogenetic analysis however cannot prove an infection. And phylogenetic analyses bear the risk of false results and misinterpretation at the expense of a defendant. There are no standards (guidelines) so far for such analyses in forensic context and its results unfortunately again and again are misunderstood and misinterpreted by the courts. UNAIDS and the EU-Fundamental Rights Agency for years have been highlighting this.

So the man did not agree to blood withdrawal from him as he fears, because he is innocent, to be wrongfully convicted on the basis of such a blood test. Since 1 January he now is facing the danger of forced blood taking at any time. Therefore he has addressed the Constitutional Court.

"It is incredible that the governing coalition passed this unconstitutional law," says president of Rechtskomitee LAMBDA (RKL) and defence counsel of the man, Dr. Helmut Graupner, “As too often we again have to hope for the Constitutional Court”.

Seit 1.1.2012: Zwangs-Hiv-Tests: Rechtskomitee LAMBDA (RKL) unterstützt Antrag an den Verfassungsgerichtshof

Das Terrorismuspräventionsgesetz bringt auch eine Novelle der Strafprozessordnung. Seit 1.1.2012 sind gewaltsame Blutabnahmen bei Verdacht einer Ansteckung mit Hiv zulässig, obwohl die Verfassung zwangsweise Blutabnahmen verbietet. Eine Beschwerde liegt bereits beim Verfassungsgerichtshof.

Mit dem im Oktober 2011 verabschiedeten Terrorismuspräventionsgesetz wurden Zwangsblutabnahmen bei Verdacht des Vergehens der Gefährdung von Menschen durch übertragbare Krankheiten (§ 178 Strafgesetzbuch) erlaubt. Bisher waren zwangsweise Blutabnahmen (bei nicht berauschten TäterInnen) nur bei Verdacht auf ein Sexualverbrechen oder auf ein (anderes) Verbrechen zulässig, das mit mehr als 5 Jahren Freiheitsstrafe bedroht ist.

Das ist seit 1. Jänner anders, obwohl der Verfassungsgerichtshof zwangsweise Blutabnahmen verbietet, weil niemand gezwungen werden darf, seinen Körper als Beweismittel gegen sich selbst zur Verfügung zu stellen. Die erste Beschwerde gegen die neue Befugnis der Kriminalpolizei liegt bereits beim Verfassungsgerichthof.

Der unbescholtene Antragsteller ist Hiv-positiv und beantragt die Aufhebung der Gesetzesnovelle. Die Staatsanwaltschaft (StA) hat gegen ihn ein Ermittlungsverfahren wegen des Verdachts gem. § 178 StGB eingeleitet, weil ihn ein anderer Hiv-positiver Mann beschuldigt, ihn mit Hiv angesteckt zu haben. Tatsächlich hatte der Mann mit diesem anderen Mann vor Jahren einvernehmlichen sexuellen Kontakt, jedoch entsprechend den vom Gesundheitsministerium und den Aids-Hilfen propagierten Safer Sex Regeln, also mit Sexualpraktiken, bei denen eine Ansteckung nicht möglich ist (Oralverkehr ohne Ejakulation in den Mund).

Erpresst und angezeigt

Der mehrfach wegen Gewalt-, Suchtgift- und Vermögensdelikten vorbestrafte Anschuldiger hat die Anzeige, in der er ungeschützten passiven Analverkehr behauptete, erst Jahre nach dem sexuellen Kontakt erstattet und erst nachdem der Beschuldigte nicht bereit war, seine erheblichen finanziellen Forderungen zu erfüllen. Zudem hat er selbst in seiner Einvernahme angegeben, anderweitig ungeschützte sexuelle Kontakte gehabt zu haben und hatte er im Internet flüchtige sexuelle Kontakte („Sexdates“) gesucht mit einem Profil, auf dem angegeben war: „Safer Sex: Niemals“. Darüber hinaus ist dieser Mann nach seinen eigenen Angaben heroinsüchtig, und war daher, außer dem sexuellen noch anderen Übertragungswegen für eine Hiv-Infektion ausgesetzt.

Das gegen den Anschuldiger (wegen des Verdachts der schweren Erpressung) eingeleitete Strafverfahren wurde „wegen der widerstreitenden Aussagen“ sogleich nach Einvernahme der beiden Männer eingestellt. Nicht jedoch das Verfahren gegen den Beschuldigten wegen des Verdachts der Gefährdung durch übertragbare Krankheiten (wofür bereits unsafer Sex ausreicht, ohne dass es zu einer Ansteckung gekommen ist). Auch hier bestanden widerstreitende Aussagen, jedoch begehrte der Staatsanwalt eine Blutuntersuchung (phylogenetische Untersuchung).

Gefahr der Verurteilung Unschuldiger

Eine phylogenetische Untersuchung kann aber eine Ansteckung nicht beweisen. Und phylogenetische Untersuchungen bergen das Risiko falscher Ergebnisse und von Fehlinterpretationen zu Lasten des Beschuldigten Es gibt (noch) keine Standards (Richtlinien) für die Durchführung dieser Analysen zu gerichtlichen Zwecken und ihre Ergebnisse werden von Gerichten leider immer wieder missverstanden und fehlinterpretiert. Darauf weisen UNAIDS und die EU-Grundrechteagentur seit Jahren hin.

Der Mann hat daher einer Blutabnahme nicht zugestimmt, weil er befürchten muss, auf Grund der Testergebnisse unschuldig verurteilt zu werden. Seit 1. Jänner muss er nun jederzeit die gewaltsame Abnahme einer Blutprobe fürchten und hat sich daher an den Verfassungsgerichtshof gewandt.

„Es ist unglaublich, dass die Regierungsparteien, gegen die Opposition, diese verfassungswidrige Regelung beschlossen haben“, sagt der Präsident des RKL und Rechtsanwalt des Antragstellers Dr. Helmut Graupner, „Es bleibt, wie so oft, die Hoffnung auf den Verfassungsgerichtshof“.

Important new research project on HIV criminalisation and law reform in Nordic countries by Prof. Matthew Weait

2011-12-12T11:52:00.000Z

Following on from yesterday's post on advocacy efforts underway in Sweden, other Nordic countries and Switzerland, my friend and colleague, Matthew Weait, Professor of Law and Policy
at Birkbeck College, University of London is about to undertake an important new research study in Denmark, Finland, Norway and Sweden next Spring.

With Matthew's permission, I'm replicating the note he sent me with all the details and further background. If you can help, please contact Matthew directly, or leave a comment on my blog.

The Decriminalization of HIV Transmission and Exposure: Advocacy, Activism and Law Reform in Denmark, Norway, Finland and Sweden

Dear Friends and Colleagues,

I am writing to ask if you would be willing to assist in a research project that I will be undertaking in Denmark, Finland, Norway and Sweden in March / April 2012. The project is summarised and discussed in more detail below, but put at its simplest it will be exploring the ways in which HIV activists and others have sought to reform criminal law concerning HIV transmission and exposure in the region. My aim is to improve our understanding of advocacy and activism in this field, and to gather evidence about what works and what doesn’t. Although we have an increasing amount of data about the effects of criminalization, there is very little evidence about how civil society has responded to criminalization, and I am hoping this project will not only provide that evidence but assist people elsewhere in their reform efforts.

As explained below, the research will be conducted primarily through interviews with those who have been involved in reform efforts, and I would like to speak to as many people as possible during my time in your countries.

If you are willing and able to participate I would be very grateful if you could contact me and let me know where and when it would be convenient to meet. I would also appreciate any advice about who else I should try to contact (including, if possible, politicians, lawyers etc who have been involved). I will be in your cities between the following dates:
9/3 - 18/3
Copenhagen
18/3 - 23/3
Oslo
23/3 - 30/3
Helsinki
30/3 - 5/4
Stockholm

I am funding this research project myself (though I am hoping to get a travel grant from the Wellcome Trust). It is not sponsored in any way.

I very much hope to hear from you soon.

All best wishes

Matthew

Summary of Project
The project will explore recent initiatives by Scandinavian civil society organizations and activists to the criminalization of reckless and negligent HIV transmission and exposure in the region. Despite having levels of HIV prevalence which are among the lowest in Europe, survey data indicates that the Scandinavian countries have among the highest rates of criminalization (as measured by convictions per 1000 people living with HIV (PLHIV)). This is not only counter-intuitive, when research shows that these are countries which have lower than average imprisonment rates and that their citizens are, in general, less punitive in their attitudes towards offending behaviour than those elsewhere in Europe, it ignores UNAIDS best practice guidance on the use of criminal law as a response to the epidemic. The principal goal of the project is to contribute to our understanding of the effectiveness or otherwise of law reform strategies in the field of HIV and public health. If, as experts agree, the inappropriate use of criminal law impedes HIV prevention efforts and contributes to the stigmatization of PLHIV, it is important to understand the dynamics of, and barriers to, legal reform.

Background
The European region is suffering from an epidemic of criminalization. Across the continent, people living with HIV are being investigated, prosecuted, convicted and imprisoned for non-deliberate HIV exposure and transmission, contrary to the best practice guidance of UNAIDS and other international organizations concerned with preventing the spread of HIV and promoting the health and human rights of PLHIV. It is an epidemic that is impeding efforts to normalize HIV and reduce stigma and to affirm the importance of shared responsibility for sexual health. It is an epidemic whose impact is felt especially by people who already experience particular social and economic exclusion and vulnerability. It is an epidemic that, in theory at least, has created some 2.2 million potential criminals in Western and Central Europe.

Although all but a few countries in the region have laws which criminalize HIV transmission and exposure, the scale and intensity of their enforcement is not evenly distributed. Based on available data relating to HIV prevalence and convictions per 1000 PLHIV, there is a marked difference between the Scandinavian countries (Denmark, Sweden, Norway and Sweden) and those further south. The former, despite having significantly lower HIV prevalence than the European average, have a markedly higher rate of criminalization. Sweden and Denmark, for example, have conviction rates of 6.12 and 4.66 per 1000, while the rates for France and Italy are 0.1 and 0.74 respectively.

There is a number of possible explanations for this increased resort to criminal law in Scandinavia compared with elsewhere (including higher levels of inter-personal trust, greater confidence in judicial institutions, and a tradition of robust public health laws), but whatever the causes are, it has resulted in concern among HIV activists and civil society organisations (CSOs) in the region, who have – over the past few years especially – mobilised in efforts to repeal and reform laws and / or constrain their enforcement.

Research Questions
This research project is concerned with the work of these activists and CSOs, and specifically with understanding:
what their motivations for legal reform have been;
how they have organised nationally and regionally to try and achieve that reform;
how they have developed their policy agendas
whether, and if so how, they have engaged and communicated with both (a) PLHIV and key groups especially vulnerable to HIV infection and (b) the wider population to achieve “buy in” and broader legitimacy for reform efforts;
how they have engaged with policy makers, politicians, and government;
the political, institutional and other barriers to reform; and
what the results and consequences of reform efforts have been to date, and what they anticipate for the future.
Aims
These questions all focus on an attempt to understand better the ways in which civil society responds to the impact of law on PLHIV. By focusing on a region in which punitive law has been deployed disproportionately, and where there established and comparatively well-resourced organisations, the research will contribute to our understanding of how expert groups committed to HIV prevention and human rights protection mobilise in the face of what they perceive as a threat to the constituents whose interests they represent. In so doing, the research will provide original data about the dynamics of health activism and the impact of activism on law and policy. Two further aims are to provide a practical resource of value to HIV activists and organisations elsewhere in Europe and a record that will contribute to the oral history of the HIV epidemic in Europe.

Matthew Weait’s Background in the Area
I have worked and published in the field of law and HIV for more than a decade, specifically in the area of criminalization. For the past five years I have been involved at an international level with work on this subject: as a consultant for the EU Agency for Fundamental Rights, HIV in Europe, WHO Europe and UNAIDS, and as an invited expert at their criminalization policy development meetings, and most recently as a member of the Technical Advisory Group for the UNDP-led Global Commission on HIV and the Law. As a contributor to the policy development work of these organisations I have contributed to a number of important outputs, including a report on a rights-based approach to HIV in the EU (2010), the WHO Europe Technical Consultation on the Criminalization of HIV and other STIs (2007), and the UNAIDS Criminal Law and HIV Policy Brief (2008). For the Global Commission I was commissioned to write the Report on Criminalization of HIV Transmission and Exposure across the world. In October 2011 I was invited to give evidence to the Working Group of the Norwegian Law Commission that has been tasked to consider reform of its transmission and exposure laws, and in November 2011 I gave a plenary lecture on this subject at an international sexual health conference in Stockholm. In addition to this policy work I have published widely in peer-reviewed journals, both alone and with colleagues in other disciplines, and have written a monograph on the subject. All of this has impressed on me the importance both of understanding the dynamics of law reform in the field, and of developing a stronger, empirically grounded, evidence base. I see this project as a small, but significant, attempt to do both these things.

Methodology
The research will be qualitative, based primarily on semi-structured interviews and supplemented by policy and other documentation produced by respondents and their organisations. The analysis will be undertaken using grounded theory (Glaser and Strauss, various dates), coding the data in order to generate concepts and categories so that a theory of law reform initiatives in this particular area may be developed. It is also intended that the original interviews be made available (subject to participant consent) as a non-academic activist resource.

Relevance of the Project to Policy and Practice
As explained above, the project is highly relevant to policy and practice and will make an original and significant contribution to our understanding of the ways in which HIV activists feed into and influence (or fail to influence) law reform. In using the data to develop a theory of law reform efforts in the particular area of HIV criminalisation it is hoped that the research will provide a resource of use to researchers interested in health policy making and activist participation more generally; in making available the raw interview material as audio, it is hoped that the research project will provide a resource for activists in other countries and regions who wish to learn about the experience of the Scandinavian peers.

Sweden: Campaign to change draconian, punitive policies for PLHIV aiming for Government review

2011-12-11T16:37:00.005Z

In Sweden, the Communicable Diseases Act requires people with diagnosed HIV to disclose in any situation where someone might be placed at risk and to also practise safer sex (which, in Sweden, means using condoms - the impact of treatment on viral load and infectiousness is not yet considered to be part of the safer sex armamentarium.)

But in Sweden you're damned if you do (disclose) and damned if you don't because Sweden is one of several countries in western Europe – including Austria, Finland, Norway, and Switzerland – where people with HIV can be (and are) prosecuted for having consensual unprotected sex even when there was prior disclosure of HIV-positive status and agreement of the risk by the HIV-negative partner. Sweden uses the general criminal law for these prosecutions of which there have been at least 40 - out of an HIV population of around 5,000.

And if you think the Swedes aren't being overly harsh, then watch the harrowing documentary, 'How Could She?' about a young woman, Lillemore, who was in such denial that she did not tell anyone that she was HIV-positive (including the doctors who delivered her two children). Even though both children were born HIV-free, and no-one was harmed by her non-disclosure, following the break-up of her marriage, her ex-husband reported her to the authorities and she was sentenced to 2 1/2 years in prison.

Fortunately, most of these countries with overly-draconian policies towards people with HIV are well advanced in the process of examining (and hopefully, changing for the better) such laws and policies.

Norway has set up a special committee to examine whether its current law should be rewritten or abolished: its recommendations are due in May.

Switzerland is currently revising its Law on Epidemics, to be enacted later this year, and, according to my sources, the latest version appears to be mostly consistent with UNAIDS' recommendations.

In 2010, Austria's Ministry of Justice conceded that an undetectable viral load is considered a valid defence, even if they say individual judges can ignore their recommendation, although much more could still be done to remove the legal onus for HIV prevention on people with HIV.

And Finland has established an expert group on HIV/AIDS within the Finnish National Institute for Health and Welfare with the aim to ensure legislative reform, and address laws and polices that reinforce stigma and discrimination.

But Sweden - which has the most HIV-related prosecutions per capita of people with HIV in Europe (and probably the world) and that's not including the 100+ more people with HIV who have been forcibly detained and isolated under the Communicable Diseases Act – is lagging behind, and continues to enforce its 'human rights-unfriendly' policies.

Fortunately, civil society is fighting back. In 2010, HIV-Sweden, RFSU (the Swedish Association for Sexuality Education) and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) began a three-year campaign to raise awareness and advocate against Sweden's over-punitive HIV-related policies.

A recent conference held just before World AIDS Day put together by the campaign and attended by police, prosecutors and politicians highlighted the many human rights concerns over Sweden's current laws and policies. I was honoured to be one of only two non-Swedes to speak at the meeting (which was held mainly in Swedish - so a big thank you to Elizabeth, my personal "whisper" translator) - you can see the agenda and download a copy of my presentation here.

Download Google translated version of full article here

The meeting and associated campaign received a lot of press coverage, including the front page of the biggest circulation morning paper in Sweden on World AIDS Day.

Download 'HIV, Crime and Punishment'

At the meeting, HIV Sweden, RFSL and RFSU launched an important new manifesto, 'HIV, Crime and Punishment' that clearly explains what the problems are for people with HIV (and public health) in Sweden and asks for three actions from the Swedish Government:

A review of Swedish law, including the Communicable Disease Act as well as the application of the criminal law to HIV non-disclosure, exposure and transmission.
An endorsement by Sweden of the 2008 UNAIDS Policy Brief on the criminalisation of HIV transmission, which says that criminal prosecutions should be limited to unusually egregious cases where someone acted with malicious intent to transmit HIV, and succeeded in doing so.
A renewed, clear focus of Sweden's National HIV Policy on a human rights-based approach to HIV prevention, care, support and treatment, and sex education.

Let's hope that Sweden's policymakers take heed. After all, how can a country which supports UNAIDS' global efforts, and is perceived to be a global champion for human rights around the world treat people with HIV in its own country as second class citizens?

Don't think Sweden is that bad? Check out the 2005 case of Enhorn v Sweden at the European Court of Human Rights which found that Sweden had unlawfully isolated a man with HIV for a total of seven years, a violation of Article 5 § 1 of the Convention, 'right to liberty and security of person'.

'HIV is not a crime' by Sean Strub

2011-12-09T12:04:00.004Z

Regular readers may be familiar with the case of Nick Rhoades from Iowa, who was arrested, prosecuted and sentenced to 25 years in prison because he didn't disclose he was HIV-positive during a one-night stand with another man, despite using condoms and having an undetectable viral load. Following intervention from human rights groups and HIV advocates, Nick's 25 year sentence was eventually suspended, but he remains on parole and on the sex offenders list.

Nick is one of three courageous individuals who appear in the trailer for POZ Magazine founder, Sean Strub's, ongoing documentary project 'HIV is not a crime'. Sean's film will shed light on laws and prosecutions which treat people living with HIV as second-class citizens (Sean's term is "viral underclass") and which are informed by stigma, not science.

Sean and I share a common understanding that, especially in the United States, but not exclusively so, HIV criminalisation is having a serious negative impact on both human rights and public health. The high number of cases in the United States is primarily because many states are still enforcing outdated HIV-specific laws many of which were drafted earlier in the AIDS epidemic when HIV-related life expectancy was poor. Reflecting moral panic and poor understanding of HIV transmission risks, their impact is still very much felt today, as Sean's film will show.

Sean's documentary project could not have come at a more crucial moment, as efforts are underway on a federal level in the United States (and also on a state level including in Iowa) to modernise (or, ideally, totally repeal) these draconian laws. By focusing on the impact these laws have had on people who are often erroneously characterised by such laws – and the media – as vectors of the HIV epidemic, and even sometimes as "monsters", and showing their vulnerability and humanity, Sean's film should help explain in very personal and human terms why these laws are wrong and why they should be repealed.

Sean is looking for funding to complete the documentary (funders, please note!) and he also tells me in an email

I'm looking for additional people to interview, including those who have been prosecuted or are facing prosecution, as well as accusers, people who filed charges or considered filed charges and others. To date I have only interviewed Americans, but I am looking for people with criminalization experiences in other countries as well.

Next week, Sean and I (along with Nick and fellow documentary interviewee, Robert Suttle) will be attending the UNAIDS Programme Coordinating Board's thematic on HIV and enabling legal environments in Geneva and then will be briefly in London on Friday 16th. If you have a story to tell and will be in Geneva or London next week (or indeed if you are living anywhere else in the world, bearing in mind that Sean is based in the United States) please contact Sean or leave a comment below (I moderate all comments before they are published and so this is simply a way to get in touch with me - I will forward messages to Sean).

Canada: Urgent - support the call for prosecutorial guidelines in Ontario

2011-11-23T16:22:00.007Z

Canada is facing its most critical point in the history of criminalisation of HIV non-disclosure since the Supreme Court's 1998 Cuerrier decision which found that not disclosing a known HIV-positive status prior to sex that poses a "significant risk" of HIV transmission negates the other person's consent, rendering it, in effect, a sexual assault.

In February 2012, the Supreme Court will hear two cases - Mabior and 'DC' - that will re-examine whether Cuerrier remains valid in the light of inconsistent lower court decisions regarding what constitutes a "significant risk" of HIV transmission in the context of sexual transmission, especially when the person with HIV wears a condom and/or has an undetectable viral load due to effective antiretroviral therapy.

The main thrust of the arguments from both sides is that the "significant risk" test is unfair and should be reassessed. However, Manitoba's Attorney General (who is appealing the Manitoba Court of Appeal's decision to partially acquit Mr Mabior due to his using a condom or due to his undetectable viral load when not using a condom) is arguing in its appellants factum that the only fair legal test is whether or not a person with HIV disclosed before any kind of sexual contact, because figuring out whether the risk at the time was significant enough is too complicated. It also argues that such non-disclosure should be charged as aggravated sexual assault, which carries a maximum 14 year sentence for each episode of unprotected sex without disclosure.

Lindsay Sinese, in excellent recent blog post from The Court, examining both Mabior and DC as they head to the Supreme Court, highlights what is already problematic about attempting to prove non-disclosure in cases that are often based on he said/(s)he said testimony.

In the jurisprudence surrounding HIV criminalization, th[e DC] case reads like frustrating déja vu, exhibiting several characteristics common to many of the more than 130 people living with HIV who have been subject to criminal charges. Namely, the parties rarely agree on the facts of the case, particularly on whether or not the sexual intercourse in question was protected, how many times it occurred and under what circumstances. These critical facts obviously present significant obstacles with regards to proof and the situation devolves in a “he said, she said” scenario.

The inability to prove the key elements upon which the case turns leaves the outcome to be very unpredictable. As a result, the cases tend to hinge on the credibility of the parties, the determination is, at best, a loose science, and, at worst, an exercise in hunch-based guess work.

Another problematic factor in this realm of prosecution is that charges are frequently laid after the dissolution of a relationship. It could be argued that some of the complaints may be brought for vengeful and vexatious purposes. By leaving HIV positive people vulnerable to criminal prosecution, we are sanctifying the punishment of an already vulnerable group, and pushing this community further onto the fringes of society.

The greatest disappointment, however, is that Ontario's Attorney General has joined with the AG's of Manitoba and Quebec (where DC was tried) by obtaining intervener status.

In an application this week to the Supreme Court of Canada, the Office of the Ontario Attorney General asks to be granted intervener status in an upcoming high-profile case revolving around those living with the human immunodeficiency virus, which can lead to AIDS. It argues that the current legal standard the courts must meet has led to different interpretations across the country, resulting in "uncertainty and unfairness" in the Canadian legal system. To remedy this, the government argues that criminal liability should be based only on whether or not someone disclosed his or her HIV-status before engaging in sexual activity and not just on the safety risks they pose.

This is a major slap in the face to the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) campaign urging Ontario’s Attorney General to develop prosecutorial guidelines for Crown prosecutors handling allegations of HIV non-disclosure. The working group produced an excellent report in June 2011 which calls for restraint in HIV non-disclosure prosecutions and provides detailed legal and practice guidance covering general principles; bail; scientific/medical evidence and experts; charge screening; resolution discussions; sentencing; and complainant considerations. The report, available here, is a must-read for all advocates working in their own countries to obtain prosecutorial guidelines.

In a recent email, CLHE co-chairs Ryan Peck and Anne Marie DiCenso outline the problems they perceive with the promises made by the Ministry of the Ontario Attorney General's and its current position as intervener.

In December 2010, Chris Bentley, the former Attorney General, promised to develop guidelines. Since then, the Ministry of the Attorney General has not informed CLHE when it will be honouring its commitment to develop prosecutorial guidelines, and has not responded to CLHE’s guideline recommendations. CLHE’s recommendations are at http://www.catie.ca/pdf/Brochures/HIV-non-disclosure-criminal-law.pdf.

It is particularly troubling that the Attorney General, after committing to develop guidelines, has filed materials at the Supreme Court of Canada calling upon the Court to rule that people living with HIV must disclose their HIV status before any sexual activity whatsoever, and that not disclosing should be prosecuted as an aggravated sexual assault, which is one of the most serious offences in the Criminal Code.

When asked about this position, former Attorney General, Chris Bentley, indicated that although the intervention materials advocate for the elimination of the current significant risk test, the Attorney General of Ontario has no intention of taking such a position at the Supreme Court of Canada.

It is vital that the Attorney General fulfill the promises made.

But, as of today, we have not received any guarantee from the new Attorney General, John Gerretsen, that the Ministry of Attorney General will amend its intervention materials and take the position that people living with HIV should not be prosecuted when there is no significant risk of HIV transmission.

The Ministry of the Attorney General has until December 20 to submit its final materials to the Supreme Court. While preparing the materials, the new Attorney General, John Gerretsen, needs to know that the community is mobilized and is watching him.

The most effective way to do this is for everyone who reads this post to endorse the call for guidelines. While the Ministry may care more about Ontarians signing the call, I have had it confirmed from my contacts at CLHE that signatures from other jurisdictions would be very helpful.

When you sign the call the following email (which you can personalise if you want) will be sent to the new Attorney General, John Gerretsen, urging him to develop guidelines by December 31, 2011.

Dear Minister Gerretsen,
I am writing to congratulate you on your new post as Attorney General, and to urge you to take action on an important issue.

As you know, your predecessor, the Honourable Chris Bentley, committed in December 2010 to draft guidelines for criminal cases involving allegation of non-disclosure of sexually transmitted infections, including HIV.

I urge you to draft these much-needed guidelines by December 31, 2011. I also urge you to take into account the broad-based community input provided to the Ministry of Attorney General by the Ontario Working Group on Criminal Law and HIV Exposure (the Working Group). In spring 2011, the Working Group consulted over 200 people -- people living with HIV/AIDS; communities affected by HIV; legal, public health, criminal justice and scientific experts; health care providers; and advocates for women's rights in the context of sexual violence and the criminal justice system. In June 2011, the Working Group provided the Ministry with their Report and Recommendations based on these consultations.

I trust that you will draft guidelines by December 31, 2011, and that you will provide the Working Group and its constituents with an opportunity to review and provide input on this draft.

Guidelines are urgently needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner.
Please take action.

Punitive Economies: The Criminalization of HIV Transmission and Exposure in Europe

2011-11-14T13:22:00.000Z

Last week, Professor Matthew Weait presented this excellent paper at The Future of European Prevention Among MSM Conference (FEMP 2011) in Stockholm, Sweden.

I'll also quote from the introduction here, but the entire paper is a must-read, and can be dowloaded here.

The European region is suffering from an epidemic of criminalization. Across the continent, people living with HIV are being investigated, prosecuted, convicted and imprisoned for non-deliberate HIV exposure and transmission. It is an epidemic that is causing significant harm: not only directly – to the people who are being subjected to harsh and punitive responses – but indirectly, to efforts aimed at normalizing HIV and reducing stigma, to HIV prevention work, and to attempts to affirm the importance of shared responsibility for sexual health. It is an epidemic whose impact is felt especially by people who already experience particular social and economic exclusion and vulnerability. It is an epidemic that has created, based on UNAIDS HIV prevalence estimates for 2009, some 2.2 million potential criminals in Western and Central Europe. It is an epidemic that we have to respond to collectively, and which for we have to find a cure.

In this paper I will do three things. First, I will provide an overview of the scope, extent and distribution of criminalization in the region, and in doing so to emphasise the disparities that exist and the problematic consequences of these disparities for PLHIV. Second, I will discuss what I understand to be the reasons for criminalization, and its variation across countries. Third, and bearing in mind these reasons and variations, I will discuss some of the responses which civil society organisations and others have been making to criminalization, and at additional interventions we might consider exploring and developing.

The paper is especially timely given important developments in Switzerland and the Nordic countries, where law reform is ongoing in Denmark, Norway and Switzerland, and civil society advocacy moving towards law reform is taking place in Finland and Sweden.

One of the most interesting aspects of Prof. Weait's paper is that he finds a correlation between attitudes towards interpersonal trust and the high per capita conviction rates in the five countries mentioned above, which helps explain why the criminal law's approach to HIV in these countries focuses on public health rather than human rights.

These correlations between interpersonal trust and conviction rates in the region become even more interesting when we learn that, according to reliable empirical research, the Scandinavian countries have a lower fear of crime, are less punitive in their attitudes to those who commit crime, and – in general – have lower rates of imprisonment for convicted offenders than other countries. If this is the case, why would HIV transmission and exposure criminalization be so high?

My answer to this is tentative, but it seems plausible to suggest that the sexual HIV cases that get as far as court and a conviction are ones which are paradigm examples of breach of trust. It is not inconsistent for a society to have a lower than average generalised fear of crime, or lower than average punitive attitudes, and at the same time to respond punitively to specific experiences of harm, especially when that arises from a belief that the person behaving harmfully could have behaved otherwise and chose not to. Indeed, it seems entirely plausible that where there are high expectations of trust, breaches of trust (for example, non-disclosure of HIV status) are treated as more significant than where value in trust is low. Combine this with countries (such as those in Scandinavia) which are committed to using law to ensure public health, and which consequently are prepared to using it to respond to the risk of harm (HIV exposure), as well as harm itself (HIV transmission), and we can see why the pattern of criminalization appears to be as it is.

Denmark: HIV to be removed from Article 252, but new statute wording may re-criminalise non-disclosure without "suitable protection"

2011-11-10T19:10:00.002Z

Denmark's new Minister of Justice Morten Bødskov is now taking formal steps to remove references to HIV from Article 252 of the Danish Penal Code which means that, for the time-being, HIV exposure and transmission is decriminalised.

The news was released in a letter dated 8 November and provided to me by AIDS-Fondet (Danish AIDS Foundation).

That's the good news. The not-so-good news is that the working group set up to examine whether or not there should be a new HIV-specific law is proposing new wording for a statute that would criminalise non-disclosure of known HIV-positive status, unless "suitable protection" is used for vaginal or anal intercourse.

Their recommendations will be considered during a consultation period which ends on 6 December 2011. Members of all branches of the criminal justice system are being consulted as well as HIV and human rights organisations.

Denmark prosecuted its first HIV-related criminal 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. After at least 15 prosecutions, the former Minister of Justice suspended the law earlier this year due to concerns that it no longer reflected the realities of HIV risk and harm.

The working group has produced a 20 page memo which states that the legal basis for the current statute no longer exists and, therefore, it should be repealed. They particularly emphasise the increased life expectancy for people on antiretroviral therapy (ART) and conclude that HIV is no longer "fatal" (although it is still "incurable").

The lifespan of a well-treated HIV-infected individual does not differ from the age and gender-matched background population, and...timely treatment is now as effective and well tolerated (i.e, usually without significant side effects) so that an estimated 85-90 per cent of patients can live a normal life, as long as they adhere to their treatment on a daily basis.

The memo then examines HIV-related risk (including the impact of ART on risk) and harm and highlights that it is the estimated 1000 undiagnosed individuals (out of an estimated total of 5,500 people with HIV in Denmark) that are more likely to be a public health concern.

It notes that using HIV as a weapon in terms of violent attacks with needles; rape; or sex with minors could still be an aggravating factor during sentencing under other, revelent criminal statutes. However, a 1994 Supreme Court ruling found that general criminal laws, such as those proscribing bodily harm or assault could not be applied to sexual HIV exposure or transmission.

The memo then presents arguments for and against a new statute. It argues that any new law should not proscribe 'HIV exposure', since it notes, the risks of HIV transmission on ART "are vanishingly small" and so it would be very difficult for any prosecutor to prove that someone was exposed to HIV under these circumstances.

Since ART is now considered to be effective as condoms in reducing HIV transmission risk, the working group considered whether it might be possible to only criminalise untreated people who have unprotected sex, but worry that proving that a person on ART was uninfectious at the time of the alleged act would be too difficult.

Similarly, although they consider the UNAIDS recomendation to only criminalise intentional transmission via non-HIV-specific laws, they were concerned that proving such a state of mind would be extremely difficult.

They conclude that if a new statute were to replace Article 252 it should criminalise non-disclosure unless "suitable protection" is used. (This potentially leaves it open to argue that ART as well as condoms could be considered "suitable protection.") Their suggested wording is

§ x. Whoever has a contagious, sexually transmissible infection which is incurable and requires lifelong treatment and has intercourse with a person without informing them of the infection, or using suitable protection, is punishable by a fine or imprisonment for up to 2 years.

They note, however, that since the harm of HIV is reduced due to the impact of ART that the current maximum sentence of 8 years in prison should be reduced to 2 years and "the normal penalty should be a fine or a short (suspended) term of imprisonment."

Although they are not necessarily recommending this new statute, the working group warns that "decriminalisation...may have unintended, negative consequences" and that public health and community based HIV organisations alike should ensure that health education about HIV and how to avoid it continues unabated because "it is important to send the message that HIV is still a disease that must be taken seriously."

US: Positive Justice Project Members Endorse REPEAL HIV Discrimination Act

2011-09-23T12:00:00.001+01:00

Press Release

New York, September 23, 2011 – Members of the Positive Justice Project, a national coalition dedicated to ending the targeting of people with HIV for unreasonable criminal prosecution, voiced their support for the REPEAL HIV Discrimination Act that Congresswoman Barbara Lee (D-CA) introduced today.

Download the REPEAL ACT here

The bill calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It is the first piece of federal legislation to take on the issue of HIV criminalization, and provides incentives for states to reconsider laws and practices that unfairly target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission.

The proposed bill is being met with widespread support. Ronald Johnson, Vice President for Policy and Advocacy at AIDS United (a Positive Justice Project member) says, “AIDS United supports the REPEAL HIV Discrimination Act. It’s long past time for a review of these criminal and civil commitment laws and we welcome Representative Barbara Lee’s efforts to help local and state officials understand and make needed reforms.”

Thirty-four states and two U.S. territories now have laws that make exposure or non-disclosure of HIV a crime. Sentences imposed on people convicted of HIV-specific offenses can range from 10-30 years and may include sex offender registration even in the absence of intent to transmit HIV or actual transmission.   Though condom use significantly reduces the risk of HIV transmission, most HIV-specific laws do not consider condom use a mitigating factor or as evidence that the person did not intend to transmit HIV.

For example, a man with HIV in Iowa received a 25-year sentence for a one-time sexual encounter during which he used a condom and HIV was not transmitted; although the sentence was eventually suspended, he still was required to register as a sex offender and is barred from unsupervised contact with children. People also have been convicted for acts that cannot transmit HIV, such as a man with HIV in Texas who currently is serving 35 years for spitting at a police officer.

“The Repeal HIV Discrimination Act relies on science and public health, rather than punishment, as the lead response to HIV exposure and transmission incidents. It embodies the courage and leadership needed to replace expensive, pointless and punitive reactions to the complex challenge of HIV with approaches that can truly reduce transmission and stigma,” remarked Catherine Hanssens, Executive Director of the Center for HIV Law and Policy and a founder of the Positive Justice Project

Representative Lee’s bill requires designated officials to develop a set of best practices, and accompanying guidance, for states to address the treatment of HIV in criminal and civil commitment cases. The bill also will provide financial support to states that undertake education, reform and implementation efforts.   A fact sheet created by The Center for HIV Law and Policy, AIDS United, Lambda Legal and the ACLU AIDS Project summarizes the problems with HIV criminalization and the measures the REPEAL HIV Discrimination Act takes to address them.

"The REPEAL HIV Discrimination Act will serve a critical role in educating Members of Congress and the public about the harmful and discriminatory practice of criminalizing HIV. Such state laws often originated during times when fear and ignorance over HIV transmission were widespread, and serve to stigmatize those who are living with HIV. Our criminal laws should not be rooted in outdated myths. Rep. Lee is to be commended for her tireless leadership on behalf of those who are living with HIV/AIDS," said Laura W. Murphy, director of the ACLU Washington Legislative Office.

Scott Schoettes, HIV Project Director at Lambda Legal summarized the support of many. "Lambda Legal wholeheartedly supports the 'REPEAL HIV Discrimination Act.' It is high time the nation's HIV criminalization laws were reformed to reflect the modern reality of living with HIV, both from medical and social perspectives. Except for perhaps the most extreme cases, the criminal law is far too blunt an instrument to address the subtle dynamics of HIV disclosure."

Other PJP member statements in support of the REPEAL HIV Discrimination Act:

“The HIV Prevention Justice Alliance expresses our strong commitment to HIV decriminalization and ongoing support for Representative Barbara Lee's Repeal HIV Discrimination Bill. We have seen how the criminalization of HIV has increased instead of reduced HIV stigma and panic. We have also seen how the criminalization of HIV further targets communities - black, Latino/a, queer, transgender, low income, sex worker, homeless, drug user - which are already disproportionately impacted by HIV/AIDS and mass incarceration. We applaud Congresswoman Lee's courageous effort to support resiliency and dignity of HIV positive people and loved ones and affirm her continued support for prevention justice and decriminalization.”

---Che Gossett, Steering Committee Member, HIV Prevention Justice Alliance

“This is definitive legislation in the national fight to end HIV discrimination and for survivors of criminalization.”

---Robert Suttle, Member of Louisiana AIDS Advocacy Network (LAAN)

“A Brave New Day is in full support of Rep. Barbara Lee's Anti-Criminalization bill.”

---Robin Webb, Executive Director of A Brave New Day

“We feel strongly that many such statutes violate human rights, are constitutionally vague, are irrational, and violate the laws of science in that they attempt to characterize known scientifically proven facts about transmission as irrelevant to the issue of potential damage and danger.   We feel that people's 'fear' if irrational cannot provide a basis for a criminal statute or prosecution under same and that a statute cannot be both legal and illogical.”

---David Scondras, Founder/CEO, Search For A Cure

For a list of organizations supporting the REPEAL HIV Discrimination Act, click here.

Tell your story - how are you impacted by HIV criminalisation?

2011-08-04T18:55:00.001+01:00

Understanding the unintended impacts of the criminalisation of HIV exposure or transmission – way beyond the relatively few individuals who are accused, arrested and/or prosecuted – can play a crucial part in advocating against such laws and prosecutions.

Over the next few months, there are going to be multiple opportunities to highlight issues such as:

Creating fear and confusion about relying on disclosure to prevent HIV risk, and when disclosure is legally necessary
Making it harder for people living with HIV who are having problems maintaining safer sex to talk with healthcare workers due to fear of prosecution
Increasing HIV-related stigma
Creating a false sense that HIV is someone else's problem, rather than a shared responsibility
Providing an additional disincentive for people to learn their HIV status

These opportunities will arise via the Global Commission on HIV and Law's High Income Country Dialogue that will take place in Oakland, California on 16-17 September (click here for more details); the UNAIDS Programme Coordinating Board meeting focusing on HIV and Enabling Legal Environments that will take place in Geneva, Switzerland on 13-15 December; and through an ongoing project by IPPF, Behind Bars, that highlights a wide range of personal testimonies about the impact of HIV criminalisation.

I'm hoping that blog readers will help me collate personal testimonies about the impact of HIV criminalisation on their own lives. You don't have to be an HIV professional or have been involved in a case to have been impacted (although such testimonies are very welcome).

As the example I'm about to show you illustrates, you can simply live in fear of the law because you are living with HIV.

I'm more than happy to receive testimonies from all over the world, but right now – because I am in the middle of producing a report about the impact of HIV criminalisation in Europe for the Global Commission on HIV and the Law – I'm especially looking for testimonies from Europe.

If you have a story to share, you can either paste it into the comment box or send it to me at yourstory(at)edwinjbernard.com. Some stories that I receive may be included in my Global Commission submission, and included in IPPF's Behind Bars collection, and all will be highlighted on my blog. Submissions can be anonymous (but I will require some evidence of authenticity), and if you do use your real name, please indicate whether it can be used in full or not.

Here's Jonas's story (not his real name) from Norway. The use of Paragraph 155 (known as the 'HIV Paragraph') is currently being evaluated by a Government committee's thorough investigation into the appropriateness of HIV criminalisation. The committee should produce its recommendations by Spring 2012, although there are no guarantees that a version of this law will not remain on the books and continue to be enforced when their deliberations end.

Paragraph 155 of the Norwegian Penal Code, an infectious-disease law enacted in 1902, essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status and consents, and irregardless of viral load or a desire by a couple to conceive. Both ‘willful’ and ‘negligent’ exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for ‘willful’ exposure or transmission and three years for ‘negligent’ exposure or transmission.

Paragraph 155 - and a story from a partially unlived life

In my teens I turned off my sexuality. Even as my hormones were reaching boiling point, I managed to shut down. I felt that my desires were wrong, and I am a strong-minded person. In my twenties, I told my family and friends that I was gay. I began to have sex carefully, but I was never in any relationship.

When I reached 30, and after some therapy, I began to feel ready to try enter into a relationship. In January 2000 I took the HIV test, together with my best friend, since it was the "millennium change." My test turned out to be HIV-positive, and the shock was devastating. I was very far from having a wild sex life – it was just very bad luck. Like many other HIV-positive persons, I later came to understand what my doctor told me following diagnosis: "You are going to be fine. HIV is no longer a death sentence." The words were a great comfort. I still had so much unlived life in me.

Life with HIV was difficult at first, but slowly I came to accept the new situation, the same way I had earlier come to accept my sexual orientation. But because of Article 155 must I, as a virile, and still fairly young man, now live like a monk – an asexual monk? What kind of life will that be? Would I be able to live like that?

Last time I had sex was some months ago. I was dating a nice guy I was attracted to, and we were at his place. Sweet music was playing. I lied and said I did not have the energy to have sex after my gym work out, but that I would like a massage instead. I got the massage. A very nice massage. The atmosphere got hot. I felt both excited and uneasy. He said he wanted to have sex with me. I said no. We continued with massage and kissing for a while. “Just a little?” He asked again. I gave in. We began to have sex. We got a condom and lubricant ready. Then the thought hit me hard, like a powerful wave. What if the condom bursts? It could happen, even if it is very unlikely. "Exposure to potential risk," says the HIV Paragraph.

Although I hadn't told him myself, I knew that he knew a guy who knows that I am HIV-positive, someone I met at a seminar for HIV-positive people some years before. But I did not know this guy well, and I share my diagnosis only with people I have known for a long time, and trust, like friends and family. What if he tells his friend about this incident? Perhaps his friend would guess who I am and say, was his name xxxx? 'Ah yes, he has HIV, like me!' What if he then calls the police? Reports me? What if the police comes to my home? Brings me in for interrogation, and puts me in a prison cell? What about my important meeting next week? Mum will be crushed if I go to jail. For having sex.

I pulled away. I used the oldest excuse in the book: headache. And low blood sugar. I put on my clothes and left. I never called him again. I have thought about him several times.

I will not be able to live my life without sex. I'm not a big fan of the word injustice. Nature is not fair. But Paragraph 155 criminalises me for wanting to live a full life – and that includes a sex life. Me - who has studied law just because everyone said I was always so fair and wise.

I feel like a victim, even though I often criticise the role of the victim. A victim of this discriminatory law that criminalises the sexuality of people affected by HIV. A victim of prejudice related to HIV, which few seem to bother to care about. Norwegian society likes its scapegoats. I want to remove the criminalisation of sexuality in Norway. I want a good life. In Norway. In 2011. And in the rest of the years I will live in this beautiful country.

New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions

2011-08-04T14:06:00.002+01:00

From UNAIDS front page today.

Feature Story: New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions

The UK charity National AIDS Trust (NAT) launched a report on 4 August 2011, entitled Estimating the likelihood of recent HIV infection – implications for criminal prosecution, which explores the validity and meaning of the Recent Infection Testing Algorithm HIV tests, or RITA tests, within the context of criminal prosecutions of HIV transmission.

The report, primarily aimed at professionals working in the criminal justice system and HIV specialists who may be called on as expert witnesses in criminal HIV transmission cases, calls for caution about the potential use of RITA results to determine timing of HIV infection.
About RITA and its potential use in criminal law context
RITA tests estimate the likelihood that a person found to be HIV-positive has been infected recently, usually within the previous six months. To date, the United Kingdom is the only country reported to routinely return RITA results to newly diagnosed patients.

As criminal law in the UK allows for the prosecution of people for transmitting HIV to another person, the report underlines the importance that RITA tests and their limitations be fully understood and not misused in criminal proceedings. The report underlines that while there have been no reported instances of use of RITA results in courts to attempt to prove timing of HIV transmission and consequently the identity of the person who transmitted HIV, this may happen in the near future.
No test can conclusively state when an individual acquired HIV
“No scientific test is able to conclusively state when an individual acquired HIV,” said Dr Cate Hankins, Chief Scientific Adviser to UNAIDS. “It is important to be cautious, follow clear protocol, and understand the limitations of RITA results when delivering them to patients or using them within a criminal law context.”

According to the report, proving HIV transmission in the context of criminal law cases requires the use of a combination of scientific evidence, medical records and testimony to establish the facts, timing and direction of HIV transmission.

“Scientific advances such as RITA testing are extremely welcome when estimating the recency of HIV infection on a population level, especially as late diagnosis is a huge issue,” said Ms Deborah Jack, Chief Executive of National AIDS Trust. “However, it is crucial that the limitations of RITA tests are fully understood and are not used out of context, for example during criminal proceedings.”

As RITA tests are designed to work at the population level (based on averages) rather than at the individual level, taking into account significant rates of false RITA test results in individuals, the report draws the conclusion that RITA tests are not reliable as evidence of recent HIV infection for individuals in the context of criminal proceedings.
Better understanding of HIV science in the context of criminal law
The NAT report comes weeks ahead of an expert meeting on the scientific, medical, legal and human rights aspects of the criminalization of HIV transmission and exposure organized by UNAIDS in Geneva from 31 August to 2 September 2011.

The meeting will bring together leading scientists and medical experts on HIV together with legal and human rights experts. Participants will examine relevant scientific and legal evidence and concepts relating, among others, to harm, risk, intent and proof, and their conceptualization/application in the context of criminalization of HIV exposure and transmission.

The meeting is part of UNAIDS’ work towards halving the number of countries with punitive laws and practices around HIV transmission, sex work, drug use, or homosexuality that block effective AIDS responses by 2015.

Canada: HIV "murderer" Aziga now also a "dangerous offender", locked up for life

2011-08-03T20:40:00.001+01:00

Johnson Aziga, 55, an African migrant living with HIV, is a now officially a "dangerous offender" according to Canadian criminal law.

Mr Aziga is already considered a "murderer" two times over. He was convicted in 2009 of two counts of first-degree murder, ten counts of aggravated sexual assault and one count of attempted aggravated sexual assault, because he had unprotected sex with eleven women without telling them he had HIV. Seven of the women subsequently tested HIV-positive, and two died of AIDS-related cancers within a couple of years of having had sex with Mr Aziga.

[A number of articles and blog posts on Mr Aziga's trial – and the media's reaction to it – can be found on my blog.]

Being a "dangerous offender" means he will likely remain in prison for the rest of his life – even in the unlikely event that his life sentence without the possibility of parole for 25 years for the murder convictions is overturned on appeal. [The whole "dangerous offender" process is considered by some legal experts to be discriminatory and "dangerous" because "putting the onus on criminals makes it too easy for the court system to declare people dangerous offenders.]

Johnson Aziga would have been at least 78 years old if he had been able to be considered for release after 25 years. And yet, somehow, the Canadian legal system considers that at this age, Mr Aziga's libido would be so voracious, his appeal so alluring to Canada's heterosexual female population, that he must be locked up for life.

Mr. Aziga's sex drive “is head and shoulders above” the average man's and “knowing his need for sex is not going to be satisfied” could deter him from disclosing his HIV status to potential partners, [Crown attorney Karen Shea argued]. “He didn't abstain from sex knowing what he knew (about having HIV), he didn't discuss his HIV status knowing what he knew and he didn't wear a condom knowing what he knew,” she told the court.

I am the only person that sees this as absurd - as both racist and HIV-phobic?

The legal characterisation of men of African origin with HIV as 'monstrously' hypersexual is not new. Back in 1993, Canada tried to convict Charles Ssenyonga of similar 'crimes' (His 'victims', like Aziga's, were all white women; his virus, like Aziga's, a "rare African strain".) Ssenyonga died before the trial concluded. The prosecution (and media's) focus on his hypersexual Africanness was explored in a fabulous 2005 article by James Miller, 'African Immigrant Damnation Syndrome: The Case of Charles Ssenyonga' published as part of a special issue of the social science journal, Sexuality Research & Social Policy called 'Reckless Vectors: The Infecting “Other” in HIV/AIDS Law.'

In the introduction by the journal's editors Heather Worth, Cindy Patton, and Diane Goldstein, they highlight the issue of racism in HIV criminal cases.

...the fact that the accused is African is used to indicate a priori an excessive and lethal sexuality and to position Africa itself as a deviant and viral continent and as the source and cause of AIDS. This prejudice extends to successive generations of African immigrants, as can be seen in the case of Nushawn Williams, an African American man from upstate New York. The same focus on Williams’ Black, eroticized body is evident in the numerous media accounts of the case.

Interestingly, Nushawn Williams is currently going through exactly the same process as Mr Aziga, having already served the maximum sentence of 12 years for the 'crimes' he pleaded guilty to back in 1998. Back in May 2010, a New York State Supreme Court judge ruled that Mr Williams "poses a danger to society and as a result, must remain behind bars even though his sentence is complete." He is now awaiting the outcome of his civil confinement hearing that has been delayed for almost a year.

Mr Aziga and Mr Williams are being punished twice over. The idea that society is protected from HIV by keeping them in prison indefinitely is erroneous and outrageous. In the past men used to "lock up their daughters" when a man of purported huge sexual prowess came sniffing around, as if their female offspring did not have a sexuality or a choice in whether or not to have sex with their suitor.

Now, society locks up "HIV monsters" because it thinks female members of society need protecting from them, as if they did not have a sexuality or a choice in whether or not to have sex with their suitor.

But the real problem is that focusing on Black or African HIV (in the guise of Aziga or Williams) creates a false sense of security because all sex comes with risks of HIV infection (and these risks are usually much higher from someone with HIV who is undiagnosed, and therefore unable to disclose).

Wouldn't it be better – and more cost-effective – to spend some money on HIV prevention education for the general public, so that white heterosexual women, and others who think that they are not at risk for HIV because they haven't been targeted with HIV prevention information (usually aimed at 'key populations' like gay men and Black or African communities) can learn how to protect themselves from HIV rather than foolishly relying on the criminal law to protect them after the fact?

UK: The return of the "HIV Monster"

2011-07-27T13:26:00.002+01:00

The British tabloid press had a field day yesterday following the sentencing of Nkosinati Mabanda, 44, at Wolverhampton Crown Court for 'reckless' HIV transmission. He received a four year prison sentence; was also given an anti-social behaviour order (ASBO) ordering him not to have sex without first revealing his HIV status (unclear if this also covers his time in prison); and will be considered for deportation following his release.

Of note, the only successful prosecutions for 'reckless' HIV transmission in England & Wales since 2004 have taken place when the defendant pleaded guilty. (See this table of all UK cases from NAT - an additional heterosexual case in Wood Green, London, was dismissed in March 2011 due to lack of evidence).

In fact, Mr Mabanda had tried to change his guilty plea (and his legal representation) when he realised how difficult it was to prove the charges he'd already pleaded guilty to. He was not only unsuccessful, but did himself no favours by having a further sexual relationship with another woman (who did not test HIV-positive) in the two years he was out on bail. (The first report of his case, from December 2009, is here.)

Since Mr Mabanda's country of birth is Zimbabwe (he apparently migrated to the UK in 2004), the two right-wing tabloids, The Sun and The Daily Mail pandered to their readers' prejudices and characterised this human being who had make mistakes (as human beings do) as an 'HIV Monster'.

The term "HIV Monster" and its variant, "HIV Avenger", has been around since the late-1980s. The idea that a person with HIV is no longer human but a "monster" was established by the myth of “Patient Zero,” a key figure in Randy Shilts’ bestselling 1987 book about the AIDS epidemic, And the Band Played On. "Patient Zero" was characterised as a sociopathic individual who may have intentionally infected others following his AIDS diagnosis, behaviour for which, Shilts suggested, the coercive powers of the state were ineffective. This myth has since been replayed many times worldwide and is often the impetus for calls for new HIV-specific laws and/or tougher sentencing.

Certainly, readers' comments suggest the tabloids did their job of dehumanising Mr Mabanda - many calling for his death, castration or, at the very least, immediate deportation to what they hope will be a certain and painful death in the absence of HIV treatment in his native Zimbabwe. Anti-immigration (and anti-African) sentiment is also widely expressed. The comment below is illustrative of all of the above, and yet also alludes to the difficulties of disclosure due to HIV stigma. (Of course, having children if you are HIV-positive is neither "off the cards" nor "selfish" - it is possible to conceive and give birth with minimal risk to a sexual partner or infant and many people with HIV can, and do, have children with the full support of their doctors, partners and families.)

The content of the stories - if not the tabloids' headlines – take their facts and their moral tone from a police press release, and the words of the complainant.

The press release states:

Superintendent Jan Thomas-West, from West Midlands Police, said: "The particularly disturbing element of this case is Mabanda's blasé attitude towards his victim and his various other partners.

"Mabanda told officers that he had had sex with nine women in the UK and that seven of them had not know he was HIV positive. Unfortunately, these women were impossible to trace.

"He seems to have shown no regard for the health of others or the potential life sentence he may have passed on to anyone who had sex with him.

"His victim will remain on medication forever and her life expectancy has been reduced as a direct result of his actions.

"I am pleased that Mabanda has received a significant custodial sentence today."

West Midlands police subsequently circulated a second email quoting the complainant, parts of which were used in the The Sun and Mail stories.

Further to this release, please find below a statement from his victim, who wishes to remain anonymous:

"I am pleased with the sentence given to Mabanda today and that the judge recognised the seriousness of what he has done.

"I feel a combination of anger and relief. Anger at what he has done to me and potentially other women and relief because he has been punished for his actions.

"I think he should have been given life because that’s the sentence he has given to me.

"What he did has had a devastating impact and will affect me every day for the rest of my life, but now I want to move on.

"If anyone else recognises him because of the media coverage and they have been infected, they should go to the police and I will be there for them."

The complainant also gave interviews to the local paper, The Express and Star and to BBC Radio 5.

She said: “He should have been given life because that’s the sentence he has given to me. He’s just scum. I hope he’s deported because I hate him.

“I’m on medication now for the rest of my life.”

And in the BBC interview she highlights that Mr Mabanda knew he was HIV-positive "before he came to this country."

I have a great deal of compassion for the complainant, who also admits in the BBC interview that she knew nothing about HIV (including, obviously, how to protect herself) before she discovered from Mr Mabanda's fiancée that she was at risk.

But there appears to be no attempt to understand how Mr Mabanda acquired HIV himself; continued to have multiple concurrent relationships; and felt unable or unwilling to either use a condom or disclose to most of the women he encountered. (Interestingly, though, he had disclosed to two of the ten women.) The only evidence of any kind of understanding of Mr Mabanda's issues comes from Twitter.

Couldn't agree more, Krystle.

Denmark: HIV criminalisation exports stigma, writes Justice Edwin Cameron

2011-06-14T10:30:00.003+01:00

Denmark's leading broadsheet newspaper, Politiken, last week published an article by Justice Edwin Cameron of the South African Constitutional Court congratulating Denmarks' recent suspension of its HIV-specific criminal statute, and asking that it considers abolishing it altogether – otherwise it risks being emulated in low-income settings that follow the country's example of an otherwise strong human rights record.

Justice Cameron wrote a similar article for a Norwegian newspaper in 2009 which led to a rethink of the use of Paragraph 155 (the 'HIV paragraph') and the establishment of an independent commission to explore the article's revision.

I hear from my contacts in Denmark that there already some signs that the article has gained the attention of some high-level government ministers concerned about Denmark's standing in the global HIV community.

Let's hope it has a positive impact on Denmark's ongoing government working group currently considering whether the only HIV-specific law in Western Europe should be revised or abolished.

The full text of Edwin Cameron's article in English is below. The Danish original can be found here.

Debate: Denmark exports stigma
AIDS Foundation
Politiken 8th June 2011, Culture, page 6

INTERNATIONAL COMMENTARY: Danish HIV-law is in conflict with the UN
by Edwin Cameron

When South Africans think of Denmark, we see a country with the highest humanitarian standards that others look up to. I was therefore disturbed to realise recently that Denmark has one of the world’s harshest laws criminalising HIV: Penal Code Section 252, paragraph 2. This provision makes criminal anyone with a life threatening and incurable communicable disease who wilfully or negligently infects or exposes another to the risk of infection.

What is notable about the Danish law is that it includes mere exposure—which means that a person may be guilty even though there is no actual transmission. The penalty is severe—up to eight years of imprisonment. Today the law only covers people living with HIV — a vulnerable group that experiences much discrimination.

Denmark is among the world's most generous contributors to UNAIDS, the UN agency that works to mitigate the impact of this mass worldwide epidemic. In addition, Denmark has signed the declaration on HIV and AIDS, adopted at the UN Special Session. But Denmark's penal code is in conflict with both UNAIDS and the UN Declaration's position.

UNAIDS has called on governments to limit criminalisation to cases where "a person knows his HIV positive status, acts with the intent to transmit HIV and actually transmits HIV'. In contrast, the Danish penal provision is precisely the kind of legislation that UNAIDS warns against.

We know that many developing countries pay attention to the more developed countries' laws when they formulate their own. In Africa, my own continent, an increasing number of countries have adopted laws that criminalize HIV, with devastating consequences - not least for women. By maintaining its own discriminatory legislation Denmark in effect exports stigma.

But there are strong reasons why criminal laws and prosecutions are bad policy when it comes to AIDS.

1: Criminalisation is ineffective in relation to limiting the spread of HIV. In most cases the virus spreads when two people have sex, neither of them knowing that one of them has HIV. The fact that a penal provision is of no use here is a good reason to doubt whether it should remain on the statute book.

2: Criminal laws and prosecutions are poor substitutes for measures that can really control the epidemic. Experience shows us that well-considered public health programmes that offer counseling, testing and treatment are far more effective tools to prevent the spread of HIV.

3: Criminalisation does not protect women, but makes them victims. In Africa, most of those who know their HIV status are women, because most tests take place at antenatal health care sites. These laws have rightly been described as part of a 'war on women'.

4: Many of these new laws in Africa, which are being adopted partly on the strength of Western European precedents, are extremely poorly drafted. For example, according to the 'Model Law' that many countries in East and West Africa have adopted, a person who is aware of being infected with HIV must inform “any sexual contact in advance” of this fact. But the law does not define “any sexual contact.” Is it holding hands? Kissing? Nor does the law say what “in advance” means.

5: Criminalisation increases stigma. From the first AIDS diagnosis 30 years ago, HIV has carried a mountainous burden of stigma. One overriding reason: the fact that HIV is sexually transmitted. No other infectious disease is viewed with as much fear and repugnance. It is tragic that it is stigma that drives criminalisation.

6: Criminalisation has a deterrent effect on testing. AIDS is now a medically manageable disease, but why would someone want to know their HIV status when that knowledge may lead to prosecution? Criminalisation assumes the worst about people with HIV and punishes their vulnerability.

Denmark's legislation also makes it difficult for a country that ought to be a world leader in non-discrimination to confront other countries' laws. For example, Denmark has contributed constructively in the international movement to abolish the travel restrictions for people with HIV.

The recent decision by the Danish Justice Minister, Lars Barfoed, to suspend the Danish Criminal Code provision on HIV on the grounds that people living with HIV on treatment today live much longer lives and the risk of transmission of the virus to others is much reduced is certainly a step in the right direction. I congratulate the Danish Government on this decision. The very positive developments in HIV treatment is indeed a good reason to radically reconsider whether Penal Code 252. 2 should exist at all.

Penal Code provisions are a piece of the puzzle that shows how a country treats its citizens. Let us fight stigma, discrimination and criminalisation - and fight for common sense, effective prevention and access to treatment. Only in this way can we fight this global epidemic.

Edwin Cameron is a judge of South Africa's Constitutional Court who is himself living with HIV.

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

2011-06-13T10:08:00.002+01:00

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

2011-06-07T10:00:00.000+01:00

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

None of the actions criminalised in this Bill pose a real risk of HIV transmission. Spitting while HIV-positive poses no risk of HIV transmission. The Centers for Disease Control has unequivocally stated that spitting cannot transmit HIV. Other “body fluids” identified in the Bill - including mucus, urine, and vomit, absolutely cannot transmit HIV.

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

Denmark: (Updated) 122 NGOs endorse civil society letter congratulating Government's suspension of HIV-specific law, asking for its abolition

2011-05-31T09:35:00.001+01:00

Update May 31st: A total of 122 civil society organisations from around the world have signed the letter which was delivered to the Danish Minister of Justice and the Danish Minister of Health in mid-May. Thank you to everyone who signed!

Download the letter here

Original post: March 31st

Following on from last month's suspension of Denmark's HIV-specific criminal law, advocates are now working hard to persuade the Government's working group not to simply rework the law, but to abolish it altogether by avoiding singling out HIV.

They are asking the Government to consider only making intentional transmission of a serious communicable disease a criminal offence, as recommended by UNAIDS, and to focus instead on supporting people with HIV (diagnosed and, even more importantly for public health, undiagnosed) to access comprehensive prevention, counselling, testing, treatment, care and support services.

What happens in Denmark could have a profound effect on policy, not only in neighbouring Nordic countries – where law reform and other HIV criminalisation policy discussions are also taking place this year – but all around the world.

To parapahrase South Africa's Justice Edwin Cameron, who argued in his excellent 2009 article for Norwegian newspaper, Dagbladet, "that by applying its own discriminatory legislation, Norway in effect exports stigma," by abolishing its own HIV-specific law, Denmark in effect would lead the world by exporting rational, public health-based policy.

Full text of the introductory remarks and sign-on letter from AIDS-Fondet (Danish AIDS Foundation) is below. Please sign before 29th April 2011 by emailing laura@aidsfondet.dk (and include the NAME OF YOUR ORGANISATION and COUNTRY) and distribute to your networks locally, nationally and globally.

Dear non-governmental and community-based organisations, national and regional networks working on HIV and AIDS,

We would like to share with you the good news that last month the Danish Justice Minister suspended Article 252 of the Danish Penal Code used to prosecute people living with HIV for 'wanton or reckless' exposure or transmission of HIV. This is the only criminal statute in Western Europe that singles out HIV as "a fatal and incurable disease."

The law is undergoing revision and a working group is currently considering whether to amend, or totally rewrite, Article 252.

To help this process along, the Danish AIDS Foundation is seeking your endorsement of a letter (see below in bold and/or download here) to the Danish Minister of Justice and the Danish Minister of Health who are leading the working group comprising representatives from the Ministry of Interior, Ministry of Health, the National Board of Health and the Prosecutor General.

By signing, you help:

in congratulating the Ministers on their recent decision to suspend the Danish Penal Code that criminalises HIV exposure and transmission

to ensure that during the revision process the Danish Government takes into due consideration whether the particular section singling out HIV should exist in the Penal Code at all.

It is our hope that a successful revision of the Danish Penal Code will allow for other countries to follow suit.

If your organization wishes to endorse the letter below, please send an email to laura@aidsfondet.dk and include the NAME OF YOUR ORGANISATION and COUNTRY before 29th April 2011.

Your help is very much appreciated!

Dear Minister of Justice, Mr. Lars Barfoed and Minister of Health, Mr. Bertel Haarder

We, the undersigned, non-governmental and community-based organisations, national and regional networks working on HIV and AIDS congratulate you on your wise decision to suspend section 252 (2) and (3) of the Danish Penal Code on HIV and AIDS.

The remarkable progress in treatment options for people living with HIV that allows for the possibility of a normal life expectancy, and greatly reduces the possibility of exposing others to HIV is certainly a good reason to reconsider the law on HIV and AIDS.

However, in your important work on the revision of the Danish law, we strongly urge you to consider whether the particular section in the Penal Code that relates specifically to HIV exposure or transmission should exist at all. HIV exposure or transmission should not be singled out for special consideration as a criminal offence but should be treated in the same manner as other serious communicable diseases.

Punitive laws on HIV and AIDS undercut basic HIV prevention and sexual health messages and are ineffective in reducing the spread of HIV. Since HIV mainly spreads from persons not aware of their HIV status, such laws only fuel ignorance, fear, stigma and discrimination against people aware they are living with the virus. We strongly believe such laws are counterproductive since they lessen the likelihood that individuals will learn their HIV status and access treatment.

In our opinion, consistent with rational, public health-based policy, only intentional transmission of a serious communicable disease should be criminalised. In addition, we strongly suggest that the Danish Government support efforts that emphasise shared responsibility for HIV prevention and the importance of providing comprehensive prevention and care services for people living with HIV to help reduce the risk of transmission to others.

Yours sincerely,

Canada: (UPDATE with documents) Montreal woman prosecuted in revenge, sentenced to a year in the community, acquitted on appeal

2011-04-28T11:52:00.002+01:00

Update: April 28 2011
In December 2010, the Court of Appeal acquitted the Montreal woman known as D.C. of the charges based on the fact that her viral load was undetectable at the time of single alleged one-off unprotected encounter, and therefore she did not pose "a significant risk of serious harm" to her ex-partner.

Thanks to a colleague in Canada, I now have the (unofficial) English translation of the full text of the judgement, highlights of which are below. The full text can be downloaded here.

[103]   The test is twofold: the significance of the risk, and the seriousness of the harm.
[104]   At what level is the risk sufficiently "significant" and the harm sufficiently "serious" to characterize a particular conduct as criminal?
[105]   In the case of HIV, the seriousness of the harm is undisputed. HIV infection remains a serious one, [translation] "potentially fatal", according to Dr. Routy, regardless of the brilliant advances made by medicine in recent decades. According to current medical data, HIV infection is irreversible. The drugs developed to fight this disease are efficient, but they come with significant side effects and the challenge of striking a balance between the ability to control the virus and the ability of the patient to tolerate the medication remains.
[106]   In Mabior, in paragraph 64, Steel J.A. wrote:
64     Nonetheless, I do not think it can be disputed that being infected with HIV subjects an individual to serious bodily harm. Although no longer necessarily fatal if treated medically, HIV is an infection that cannot be cured at this time and is a lifelong, chronic infection. For those who become infected, it is a life-altering disease, both physically and emotionally. Individuals must take medications every day, and the condition is potentially lethal if they do not have access to treatment or fail to take the medications. Even with treatment, HIV infection can still lead to devastating illnesses. Moreover, the emotional and psychological impact of dealing with such a disease is, no doubt, overwhelming. In their factums, both the accused and the intervener acknowledged that acquiring HIV constitutes serious bodily harm.
[107]   I share her opinion.
[108]   The significance of the risk is a more difficult question to solve. At which point can one say that the risk is "significant"? 1 in 50,000, 1 in 10.000, 1 in 1000, 1 in 100, 1 in 10? The complete absence of risk is certainly not the test that Cuerrier intended us to apply.
[109]   The argument claiming that, in light of the seriousness of the harm associated with HIV, any risk of transmission is "significant" cannot be accepted without distorting the test.
[110]   For the failure by HIV-positive individuals to disclose their condition to partners to be sanctioned by criminal law, the risk of transmitting the virus must be significant.
[111]   In Mabior, in paragraphs 68 and 69, Steel J.A. wrote:
68     I agree that the nature of the harm can affect the determination of what is considered to be a significant risk. As the magnitude of the harm goes up, the threshold of probability that will be considered significant goes down. However, to have required a complete elimination of risk rather than a significant risk was an error in law.
69     So one must determine what constitutes a "significant risk" of transmission in any particular case. ...
[112]   I agree. Each case must be assessed by the light of its own circumstances.
[113]   Again in Mabior, in paragraph 113, Steel J.A. wrote the following on the subject:
113     Consequently, no comprehensive statement can be made about the impact of low viral loads on the question of risk. Each case will depend on the facts regarding the particular accused, and each case will depend on the state of the medical evidence at the time and the manner in which it is presented in that particular case.
[114]   Once again, I agree.
[115]   In the present case, according to the evidence on the record, the viral load was undetectable, and remained so for the whole period of time identified in the indictments, that is, June to August of 2000. At the time, the risk of transmitting HIV during unprotected sexual intercourse was 1 in 10,000. Without being zero, the risk was, according to Dr. Klein, [translation] "very weak, very minimal", or, according to Dr. Routy, [translation] "very, very low".
[116]   Also, we must not lose sight of the fact that in this particular case, unprotected sexual intercourse only occurred once before the complainant was informed of the appellant's HIV-positive status.
[117]   In this context, I believe that the fact that the appellant did not disclose that she was HIV-positive did not expose the complainant to a "significant risk of serious harm" within the meaning of Cuerrier.
[118]   The words used by both experts to quantify the risk, that is, [translation] "very weak", [translation] "very minimal", and [translation] "very, very low", are incompatible with the existence of any significant risk whatsoever.
[119]   With respect for the trial judge, I believe the Crown did not establish that the complainant's consent to unprotected sexual intercourse, prior to being informed of the appellant's HIV-positive status, was vitiated by fraud.
[120]   Consequently, there was no sexual assault and, therefore, no aggravated assault.
[121]   In Mabior, Steel J.A. concluded her reasons by saying that she understood that for the complainants, any risk of being infected was too much risk, and that they would have wanted to know prior to consenting to sexual intercourse. She adds that this point of view is shared by many, at least from an ethical or moral standpoint, but that, for the time being, this is not the test that the judiciary must apply. As the test was conceived at a time when the fight against HIV was in its infancy, Steel J.A. alluded to the possibility that the Supreme Court might want to revisit the test of "significant risk of serious harm" in order to dispel any inherent uncertainty. I add my voice to hers and note that in light of its numerous social, ethical, and moral ramifications, the initiative of revisiting the entire notion of transmission risks for serious infectious diseases, in the context of Canadian criminal law, should be the responsibility of Parliament.
[122]   For these reasons, I would allow the appeal, set aside the judgment under appeal, and acquit the appellant of the two charges brought against her.

This is not the end of the story, however.

The Crown has sought leave to appeal and the case is likely to be heard in the Supreme Court later this year or early next year.

Along with the much more complex Mabior case, who was also partially acquitted on appeal due to his using a condom or due to his undetectable viral load when not using a condom and which is also headed for the Supreme Court, these two cases will revisit the 1998 Cuerrier decision and may establish new tests for "significant risk of serious harm" as it relates to non-disclosure of HIV status prior to sex.

Original post: July 15 2008
The Montreal woman who was found guilty of HIV exposure in May, has been sentenced to a year to be served in the community. The woman, who was only prosecuted in revenge for reporting her (now ex) partner to the police for being violent against her and her 18 year-old son, was so ill that the judge could not imprison her.

I have already commented on this tragic case in my previous posting, but what I will say here is that judging from the comments on the CBC's website, where the story was reported, I am very worried about the state of public opinion in Canada.

Although a few people pointed out the real issue – that she was victimised by Canada's criminal justice system for having a law that allows disgruntled exes to make a complaint about a 'crime' that they had no problem with until their feelings changed towards to their ex-partner – many said the law was anti-male because many men, including Canadian football player Trevis Smith – have been jailed for much longer for 'similar crimes'.

Others have gone further, calling her a potential murderer, or for the names of "these carriers of HIV" to be made public "for the good of the society", highlighting the fact that the criminalisation of HIV exposure and transmission, and media reports about the trials, serve as lightning-rods for public opinion about people living with HIV. In the minds of so many Canadians, the woman from Montreal – and 'people like her' – are responsible for the HIV epidemic in their country.

The truth couldn't be further from this myth. An incredibly important and robust study from Quebec published last year found most HIV transmission comes from the undiagnosed; half of it during the first six months of infection. It is undiagnosed people with HIV, rather than those who are diagnosed, who are primarily exposing and transmitting HIV to their sexual partners.

Not only is it undiagnosed HIV that is perpetuating the HIV epidemic; diagnosed people on successful treatment are now considered to be sexually non-infectious by some experts, and the policy of treating people to prevent transmission is now a reality in British Columbia.

How can one arm of policy - Canada's criminal justice system - be so far behind the thinking of another arm? Getting people tested and on treatment is the most effective way of mitigating the epidemic. Laws criminalising individuals may create a moral tone, or exact revenge in a victim/perpertrator paradigm sort of way, but it does nothing to mitigate the HIV epidemic, and may actually make things a lot worse.

And although these trials create the illusion that HIV-positive people are primarily vectors of transmission, and the media reports of the trials can be innacurate and stigmatising, the rise of Web 2.0, with its interactive comments (even those which are moderated, such as the CBC's), adds insult to injury.

On the other hand, perhaps reading these comments is the best way of gauging public opinion. even though the judge in the forthcoming Johnson Aziga murder trial doesn't think that ordinary Canadians have "fears, assumptions and prejudices about HIV, which may feed into [their] judgments and assumptions about [people] accused [of HIV exposure and transmission] and [their] ability to assess the evidence in a calm rational fashion."

I can't help but wonder whether the dozen or so prosecutions in Canada this year have adversely influenced public opinion and that the judge is wrong.

1 year sentence for HIV-positive woman guilty of assault
Sentence to be served in community because of woman's health, court says
CBC
Wednesday, July 9, 2008

A Quebec woman living with AIDS has been given a one-year sentence, to be served in the community, for hiding her HIV status from her former boyfriend.
Quebec Judge Marc Bison handed down the sentence on Tuesday, after the woman was found guilty of aggravated assault against her ex-boyfriend for failing to tell him she was HIV-positive when the two started courting.
The woman acted irresponsibly and committed a serious crime by depriving her ex-lover of the right to decide whether he wanted to have sex with her despite her status, Bison said at the Longueuil courthouse.
Anyone with a condition as serious as HIV has a legal duty to inform his or her partner, because the virus is not like a common cold, he said.
The sentence would normally be served in prison, but because of her fragile health, she will serve it in the community, the judge said. The woman is in a treatment centre waiting for experimental drugs.
A publication ban in the case prevents the man and woman from being named, but they can be identified by their initials.
When the couple first started dating in 2000, D.C testified she initially withheld her HIV status from J.L.P., but after three months told him she was infected, the court was told.
J.L.P. decided to stay in the relationship. D.C. testified in court they used condoms from the beginning of the relationship, but the court determined the couple had unprotected sex at least one time.
HIV complaint made after assault charge laid
The couple broke up five years later, after the man was charged with assault following the woman's complaints of domestic abuse.
While his case was pending, J.L.P. alerted police about D.C.'s failure to disclose her HIV status, and she was charged with aggravated assault. J.L.P. was never infected with the virus.
This winter, the Quebec court found J.L.P. guilty of assaulting D.C. and her 18-year old son, but was eventually given an absolute discharge with no criminal record.
The Quebec Coalition of AIDS organizations was disappointed by the case's outcome.
The onus was on J.L.P. to protect himself and practise safe sex, said spokesman Ken Monteith.
The situation would have been different if D.C. had repeatedly had unprotected sex with J.L.P. without telling him, he said.
D.C. has been HIV positive since 1991. She contracted the human immunodeficiency virus from her ex-husband.

US: Coalition of Public Health and Legal Experts Urges Rational Response to Prosecution of People Living with HIV

2011-04-27T18:19:00.000+01:00

Press Release from the Positive Justice Project

(New York, April 27, 2011) -- The Positive Justice Project, a coalition of legal and public health experts that represent people living with HIV, is speaking out against sensationalist media coverage of criminal charges that have been brought against an HIV-positive African American man in Buffalo.

Darryl Fortner, 20, who has no prior criminal record, has been charged with reckless endangerment for allegedly failing to disclose his HIV status to his sexual partners.

The Positive Justice Project urges journalists to consider the following in their coverage.

A wide range of health and human rights organizations, including the United Nations High Commissioner for Human Rights, have condemned the criminal prosecution of people living with HIV for not disclosing their status. While these prosecutions often seem to protect the public health, they actually undermine public health initiatives by discouraging testing and fueling stigma. They also put HIV-positive people at high risk of unjust prosecution. President Obama’s own National HIV/AIDS Strategy, released in 2010, questions the efficacy of such laws and calls for a comprehensive review of them.

"Rushing to judgment and demonizing a young black man on the basis of his HIV status has a horrible impact not only on people who already are diagnosed with HIV, but on all of those in my community who are afraid to get tested," said Kali Lindsey, a public policy expert at Harlem United and a person living with HIV. "No one is going to get tested for HIV if they think that knowing their status will land them in jail."

Fortner's arrest is one in a long line of cases across the country where HIV-positive persons, often African American, are facing criminal charges and disproportionately long sentences for otherwise-legal behavior on the basis of their HIV status. Intent to transmit or intent to expose others to HIV is rarely--if ever--a consideration in these cases, which typically turn into a credibility battle in which the person who has first discovered he or she is HIV positive is assumed to be dishonest.

"The over-reaction to this type of situation has no support in public health principles," said Terrence Moore, Associate Director of Racial and Ethnic Health Disparities at the National Association of State and Territorial AIDS Directors.

On Wednesday, April 20, Fortner was charged with one count of reckless endangerment for allegedly not disclosing his HIV status prior to engaging in sexual conduct.   [He now faces four reckless endangerment charges.]

Journalists should keep in mind that to be charged under reckless endangerment in New York, one must have presented a “grave risk of death” to another person. HIV is no longer considered a death sentence, but rather a chronic disease.

"These laws and prosecutions continue to occur because people incorrectly believe that HIV is quickly and invariably fatal and as such should be treated differently than other sexually transmitted infections," said Vanessa Johnson, Deputy Executive Director of the National Association of People with AIDS. "That’s just not the case. And until legislators, law enforcement officials, and prosecutors understand HIV in the 21st-century, these miscarriages of justice will continue to happen all over the country."

###
****
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 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 Henry van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the POSITIVE JUSTICE PROJECT working groups, email: pjp@hivlawandpolicy.org

UNAIDS announces new project examining "best available scientific evidence to inform the criminal law"

2011-04-27T12:48:00.001+01:00

A new project announced yesterday by UNAIDS will "further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health."

I'm honoured to be working as a consultant on this project, and although I can't currently reveal any more details than in the UNAIDS article (full text below), suffice to say it is hoped that this project will make a huge difference to the way that lawmakers, law enforcement and the criminal courts treat people with HIV accused of non-disclosure, alleged exposure and non-intentional transmission.

The UNAIDS article begins by noting some positive developments previously highlighted on my blog, including Denmark's suspension of its HIV-specific law. It's not too late to sign on to the civil society letter asking the Danish Government to not to simply rework the law, but to abolish it altogether by avoiding singling out HIV. So far, well over 100 NGOs from around the world have signed the letter.

The article also mentions recent developments in Norway. In fact, the UNAIDS project is funded by the Government of Norway, which has set up its own independent commission to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people who are alleged to have exposed others, to, and/or transmitted, HIV. It will present its findings by October 2012.

As well as highlighting some very positive recent developments in the United States – the National AIDS Strategy's calls for HIV-specific criminal statutes that "are consistent with current knowledge of HIV transmission and support public health approaches" and the recent endorsement of these calls by the National Alliance of State and Territorial AIDS Directors (NASTAD) – it also focuses on three countries in Africa.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

I'd like to add a few more countries to the "positive development" list.

Canada
Last September, I spoke at two meetings, in Ottawa and Toronto, that officially launched the Ontario Working Group on Criminal Law and HIV Exposure's Campaign for Prosecutorial Guidelines for HIV Non-disclosure.

The Campaign's rationale is as follows

We believe that the use of criminal law in cases of HIV non-disclosure must be compatible with broader scientific, medical, public health, and community efforts to prevent the spread of HIV and to provide care treatment and support to people living with HIV. While criminal prosecutions may be warranted in some circumstances, we view the current expansive use of criminal law with concern.

We therefore call on Ontario's Attorney General to immediately undertake a process to develop guidelines for criminal prosecutors in cases involving allegations of non-disclosure of HIV status.

Guidelines are needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner. The guidelines must ensure that decisions to investigate and prosecute such cases are informed by a complete and accurate understanding of current medical and scientific research about HIV and take into account the social contexts of living with HIV.

We call on Ontario's Attorney General to ensure that people living with HIV, communities affected by HIV, legal, public health and scientific experts, health care providers, and AIDS service organizations are meaningfully involved in the process to develop such guidelines.

Last month, Xtra.ca reported that

The office of the attorney general confirms it is drafting guidelines for cases of HIV-positive people who have sex without disclosing their status.

This is a major breakthrough, but the campaign still needs your support. Sign their petition here.

By the way, video of the Toronto meeting, 'Limiting the Law: Silence, Sex and Science', is now online.

Australia
Also last month, the Australian Federation of AIDS Organisations (AFAO) produced an excellent discussion paper/advocacy kit, 'HIV, Crime and the Law in Australia: Options for Policy Reform'.

As well as providing an extensive and detailed overview regarding the current (and past) use of criminal and public health laws in its eight states and territories, it also provides the latest data on number, scope and demographics of prosecutions in Australia.

There have been 31 prosecutions related to HIV exposure or transmission in Australia over almost twenty years. Of those, a number have been dropped pre-trial, and in four cases the accused has pleaded guilty. All those charged were male, except for one of two sex workers (against whom charges were dropped pretrial in 1991). In cases where the gender of the victim(s) is/are known, 16 have involved the accused having sex with female persons (one of those cases involves assault against minors) and 10 involved the accused having sex with men. This suggests that heterosexual men, who constitute only about 15% of people diagnosed with HIV, are over-represented among the small number of people charged with offences relating to HIV transmission. Further, men of African origin are over-represented among those prosecuted (7 of 30), given the small size of the African-Australian community.

It then systematically examines, in great detail, the impact of such prosections in Australia.

These include:

HIV-related prosecutions negate public health mutual responsibility messages
HIV-related prosecutions fail to fully consider the intersection of risk and harm
HIV-related prosecutions ignore the reality that failure to disclose HIVstatus is not extraordinary
HIV-related prosecutions reduce trust in healthcare practitioners
HIV-related prosecutions increase stigma against people living with HIV
HIV-related prosecutions are unacceptably arbitrary
HIV-related prosecutions do not decrease HIV transmission risks
HIV-related prosecutions that result in custodial sentences increase the population of HIV-positive people in custodial settings

It notes, however, that

There is a narrow category of circumstances in which prosecutions may be warranted, involving deliberate and malicious conduct, where a person with knowledge of their HIVstatus engages in deceptive conduct that leads to HIV being transmitted to a sexual partner. A strong, cohesive HIV response need not preclude HIV-related prosecutions per se. Further work is required by those working in the areas of HIV and of criminal law:
To consider what circumstances of HIV transmission should be defined as criminal;
To define what measures need to be put in place to ensure that prosecutions are a last resort option and that public health management options have been considered; and
To ensure those understandings are part of an ongoing dialogue that informs the development of an appropriate criminal law and public health response.

That's exactly the kind of policy outcome that UNAIDS is hoping for.

In the meantime, AFAO suggests some possible strategies towards policy reform. Their recommendations make an excellent advocacy roadmap for anyone working to end the inappropriate use of the criminal law.

Their suggestions include:

Enable detailed discussion and policy development
Develop mechanisms to learn more about individual cases
Prioritise research on the intersection of public health and criminal law mechanism, including addressing over-representation of African-born accused 
Work with police, justice agencies, state-based agencies and public health officials
Improve judges’ understanding of HIV and work with expert witnesses
Work with correctional authorities
Work with media

I truly hope that the recent gains by advocates in Australia, Canada, Denmark, Guinea, Norway, Togo, Senegal and the United States is the beginning of the end of the overly broad use of the criminal law to inappropriately regulate, control, criminalise and stigmatise people with HIV in the name of justice or public health.

The full UNAIDS article is below. I'll update you on the project's progress just as soon as I can.

Countries questioning laws that criminalize HIV transmission and exposure

26 April 2011

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.

A working group has been established by the Danish government to consider whether the law should be revised or abolished based on the best available scientific evidence relating to HIV and its transmission.

This development in Denmark is not an exception. Last year, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people transmitting HIV.

In the United States, the country with the highest total number of reported prosecutions for HIV transmission or exposure, the National AIDS Strategy adopted in July 2010 also raised concerns about HIV-specific laws that criminalize HIV transmission or exposure. Some 34 states and 2 territories in the US have such laws. They have resulted in high prison sentences for HIV-positive people being convicted of “exposing” someone to HIV after spitting on or biting them, two forms of behaviour that carry virtually no risk of transmission.

In February 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD), the organization representing public health officials that administer state and territorial HIV programmes, expressed concerns about the “corrosive impact” of overly-broad laws criminalizing HIV transmission and exposure. The AIDS Directors called for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

Best available scientific evidence to inform the criminal law

These developments indicate that governments are also calling for a better understanding of risk, harm and proof in relation to HIV transmission, particularly in light of scientific and medical evidence that the infectiousness of people receiving anti-retroviral treatment can be significantly reduced.

To assist countries in the just application of criminal law in the context of HIV, UNAIDS has initiated a project to further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health. The project, with support from the Government of Norway, will focus on high income countries where the highest number of prosecutions for HIV infection or exposure has been reported.

The initiative will consist of two expert meetings to review scientific, medical, legal and human rights issues related to the criminalization of HIV transmission or exposure. An international consultation on the criminalization of HIV transmission and exposure in high income countries will also be organized.

The project will further elaborate on the principles set forth in the Policy brief on the criminalization of HIV transmission issued by UNAIDS and UNDP in 2008. Its findings will be submitted to the UNDP-led Global Commission on HIV and the Law, which was launched by UNDP and UNAIDS in June 2010.

As with any law reform related to HIV, UNAIDS urges governments to engage in reform initiatives which ensure the involvement of all those affected by such laws, including people living with HIV.

New Zealand: Charges dropped in criminal HIV transmission case

2011-03-30T11:53:00.000+01:00

All charges against a Wellington man accused of not disclosing his HIV-positive status prior to unprotected sex with his female partner who subsequently tested HIV-positive have been dropped because police are unable to trace the complainant.

Not only did Justice Simon France drop the charges of "wounding with intent to cause grievous bodily harm" but also ordered that the man's name be suppressed.

Jo Murdoch, a lawyer from the Public Defence Service, successfully argued in court that the man's identifying particulars should be suppressed.

Justice Simon France said the issue became whether the man's HIV status – a particularly private and sensitive medical fact – should be exposed when grave doubts had been raised about the alleged victim's credibility.

The case did not have the public interest element of a person accused of having put multiple partners at risk or having risky casual sex. Also, the alleged crime was irrelevant to his employment and his contact with the public generally. Taken together the circumstances outweighed the usual principle that justice should be carried out publicly, Justice France said.

Details of the case are sketchy and come from a single story in today's Dominion Post via Stuff.co.nz.

(Pdf of webpage here if link no longer works.)

Police said he did not tell his partner he had HIV, the couple had unprotected sex and she contracted the disease. The man said his partner of several years knew of his condition and that they always had protected sex.

Shortly before the trial was due, information came to light which, if true, would have affected a court's view of her honesty. Police were unable to find her and thought she was hiding from them. They had wanted to check the information before expensive tests to see if the couple had the same strain of HIV.

The Crown offered no evidence against the man, resulting in a discharge which amounted to an acquittal.

France: Man sentenced to five years for alleged transmission during one-off unprotected sex encounter in 1999

2011-03-29T10:59:00.000+01:00

A 40 year old man has been found guilty of administering a harmful substance to one's spouse or common law husband/wife with the consequence of lifelong impairment ("administration de substance nuisible par conjoint ou concubin ayant entraîné une infirmité permanente") for not disclosing his HIV status to a former partner in 1999, who subsequently was also diagnosed HIV-positive.

The Assize Court of the Lower Rhine in Strasbourg sentenced him to five years imprisonment, of which two years are suspended. The attorney general had requested five years in prison. The fact that the man was the longtime companion of the complainant during the commission of the 'crime' is an aggravating factor in French law that increases the maximum penalty from 10 to 15 years' imprisonment.

This also explains his appearance before the Assize Court (Cour d'assises) which is reserved for trials for more serious crimes.

I was alerted to the case by a blog reader, details of which are available in French only via two stories on Le Figaro posted last Thursday and Friday.

What is unusual about the reporting in this case is that both complainant – Magali Gillmann – and accused – Emmanuel Baudard – were named in the Thursday story in Le Figaro. This is the first time I have ever seen a complainant named (other than police officers assaulted via saliva or bite in the United States.)

Another unusual aspect of the case is that Ms Gillmann, 38, testified that she only had unprotected intercourse once with the accused, in October 1999. She says she fell ill two months later but it was not until 2006 that she learned that the accused knew his HIV status during the time of their relationship, which ended in 2003, and which led her to complain to the police.

Mr Baudard says he was infected during his military service in 1988-1989, but only began antiretroviral therapy in 2008. He admitted having known his HIV status at the time of the unprotected encounter but said he believed that was Ms Gillmann also HIV-positive because both were injecting drug users at the time and because she agreed to unprotected sex.

This does beg the question of whether the prosecution was able to prove a cause-effect relationship between Mr Baudard's behaviour and Ms Gillmann's infection. There is no apparent use of phyogenentics which could rule out that their viruses are linked, or to suggest a linkage.

Her diagnosis two months following the single episode of unprotected sex - which, on average, carries a very low transmssion risk of 1-in-1250 – could be purely coincidental, and she may well have acquired HIV via needle sharing or from another sexual partner. Neither appear to have been used as a defence in the case which appears to have focused solely on Mr Baudard's responsibility to disclose his HIV-positive status prior to a single instance of unprotected sex and highlights difficulties with disclosure.

The discussions highlighted the difficulties Thursday, leading the jury to consider the intimacy of the relationship of two partners who now hold conflicting versions.

The complainant said she always had safer sex with Mr. Baudard, except once, when he assured her that she had nothing to fear.

The accused acknowledged he knew he was carrying the AIDS virus, and claimed to have infected his girlfriend due to a misunderstanding, and cowardice. "I told her I could not do it without a condom, she said 'OK', and we did. For me, it meant she was [HIV-positive] like me," he told the court.

"You're too optimistic," said his lawyer Herve Begeot. "Why were you not more explicit, why not clearly tell the victim you were HIV positive?" "I ran out of courage," said Mr. Baudard.

US: State public health officials condemn 'stigmatising, harmful' HIV-specific laws

2011-03-15T12:05:00.001Z

This weekend, the National Alliance of State and Territorial AIDS Directors (NASTAD) released a statement that signifies an extremely important development in the Positive Justice Project's campaign to repeal HIV-specific criminal laws in the United States.

NASTAD is a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US.

Its motto is: 'Bridging Science, Policy, and Public Health'.

The message of their statement is simple: repeal these laws because

HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV.

In order to work towards the goal of repealing laws that create HIV-specific crimes or increased penalties for persons who are HIV-positive and convicted of criminal offences, NASTAD will

advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.

Further, NASTAD encourages its members to:

Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;

Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;

Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.

Todd Heywood of the Michigan Messenger reports that US HIV advocates - including the National Association of People with AIDS (NAPWA) and the Positive Justice Project's Senior Advisor, Sean Strub – have warmly welcomed NASTAD's statement. Read his report at the Michigan Messenger here.

The full text of the statement, below, can also be downloaded as a pdf.

NATIONAL HIV/AIDS STRATEGY IMPERATIVE: FIGHTING STIGMA AND DISCRIMINATION BY REPEALING HIV-SPECIFIC CRIMINAL STATUTES

The National Alliance of State and Territorial AIDS Directors (NASTAD), the organization which represents the public health officials that administer state and territorial HIV/AIDS and adult viral hepatitis prevention and care programs nationwide is gravely concerned about the corrosive impact of sustained stigma and discrimination on state, federal and local efforts to combat HIV/AIDS in the United States. The National HIV/AIDS Strategy (NHAS) provides an unprecedented strategic blueprint for reducing HIV/AIDS incidence through the scale-up of interdisciplinary, impactful prevention approaches. NASTAD acknowledges that the NHAS is not a magic bullet; however, the NHAS’ central vision of the U.S. becoming “a place where new HIV infections are rare” cannot be realized until the nation aggressively responds to the core of the matter: pervasive and unmitigated stigma and discrimination against people living HIV/AIDS that diminishes our best efforts to combat one of the greatest public health challenges of our time.

As a member of the Positive Justice Project, a coordinated national effort to address “HIV criminalization” statutes – laws that create HIV-specific crimes or which increase penalties for persons who are HIV positive and convicted of criminal offenses – NASTAD supports efforts to examine and support level-headed, proven public health approaches that end punitive laws that single out HIV over other STDs and that impose penalties for alleged nondisclosure, exposure and transmission that are severely disproportionate to any actual resulting harm. Steps identified to reach this goal in the Federal Implementation Plan include step 3.3, Promote public health approaches to HIV prevention and care which states that “state legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to screening for, preventing and treating HIV.” In addition, step 3.4, Strengthen enforcement of civil rights laws requires an examination and report by the Department of Justice on HIV-specific sentencing laws and implications for people living with HIV.

HIV criminalization has often resulted in egregious human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty- four states (34) and two (2) U.S. territories explicitly criminalize HIV exposure through sex, shared needles or, in some states, exposure to “bodily fluids” that can include saliva. Examples include:

A man with HIV in Arkansas was sentenced to 12 years (and must register as a sex offender after release) when he failed to disclose his status with his girlfriend and another woman – both women tested negative;

A man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom;

A woman with HIV in Georgia, who was sentenced to eight years imprisonment for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV positive status.

In none of the cases cited was HIV transmitted. In fact, most prosecutions are not for transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing stories about verbal consent that are nearly impossible to prove.

HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV. NASTAD members commit to examining existing public health policies related to HIV criminalization that may exacerbate stigma and discrimination and lessen the likelihood that individuals will learn their HIV status. NASTAD members will also continue to emphasize the importance of providing comprehensive prevention and care services for HIV positive individuals to help reduce the risk of transmission to others. In conjunction with new and existing partners, our members also pledge to:

Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;

Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;

Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.

NASTAD will continue to advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.

Approved by NASTAD’s Executive Committee: February 2011

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

2011-03-11T15:29:00.000Z

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.

Denmark: Justice Minister suspends HIV-specific criminal law, sets up working group

2011-02-17T13:08:00.001Z

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: Montana legislator's HIV "ignorance in the first degree" exposed and denounced

2011-02-10T12:58:00.006Z

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

UK: Man accused of 'intentional' transmission last month turns himself in

2011-02-04T11:12:00.001Z

A 27 year-old man whose name and picture was published last month by The Mirror, following allegations from a former partner that she became HIV-positive as a result of unprotected sex without him first disclosing that he had HIV, was arrested on Thursday by Runcorn police after he turned himself in.

Unusually, according to yesterday's Mirror report, he was charged for 'intentional' transmission under Section 18 of the Offences Against the Person Act 1861. These charges are highly unlikely to stick – proving intent, never mind proving that the man is the source of the complainant's virus – is extremely difficult. Several other cases in England & Wales where individuals have eventually been found (or pleaded) guilty to 'reckless' HIV transmission began with charges of 'intentional' transmission.

There are no details reported to suggest that man acted with intent. According to the original Mirror report

The mum who made the complaint is worried [he] could put other women at risk. She was in a relationship with him and having unprotected sex when she was told by one of his former lovers that he had HIV. When she confronted him it is alleged he confirmed he was infected. She was tested and discovered that she also had the virus. The woman, from Cheshire, has two young children from previous relationships. Neither child has the virus. She believes [he] knew he had the virus for more than four years.

What is unusual about this case is the fact that a UK national newspaper picked up on the story before he had been charged. As far as I am aware, this has only happened once before in the UK, in Scotland (and nothing ever came of the case).

Although The Mirror's story on Jan 15th, had the headline 'Police hunt man suspected of infecting lovers with HIV' there was only one complainant a "mum of two" who "suspects" he might have infected others. Of note – and in contrast to US and Canadian statements by the police in similar situations – Runcorn police were somewhat restrained in their characterisation of the man.

A police spokeswoman said: “It is not believed that [he] poses a risk to the public as a whole. However there is potential for risk of harm to those in a domestic relationship with him. Detectives advise that any sightings be reported to police so that the information can be acted upon.

The news spread, virus-like, through other media in the UK and beyond: The Voice on January 17th; Huddersfield Daily Examiner on January 19th; Yorkshire Post on January 20th; and yesterday – since the man is of Jamaican origin – in the The Jamaican Star.

One interesting side note. The woman who made the complaint "is said to have endured taunts from former associates. Her home has also been daubed with hurtful graffiti." One wonders if the police are also investigating this alleged hate crime against her?

US: Dying daughter released from Florida jail following spitting conviction - UPDATE

2011-01-05T15:13:00.000Z

Update: January 5 2011

The Bilerico Project reports today that

The Florida Parole Board met in an emergency meeting this morning to hear Betsie's case. The board approved a conditional medical release in a 2 to 1 vote; Betsie is being released to a Miami hospice to live out her final weeks of life surrounded by her family.

Original post: December 24 2010
As we focus on friends and family over the Holiday period, spare a thought for the many people with HIV in prison convicted of 'crimes' that harmed no-one except themselves.

In particular think of Betsie Gallardo, 27 – convicted in 2008 of battery on an officer and resisting arrest and sentenced to five years in prison because she is HIV-positive and spit on a police officer during a traffic accident investigation – who is dying of cancer. (Her case went unreported at the time, suggesting that such heinous miscarriages of justice are even more prevalent than we currently think.)

Her mother, Jessica Bussert, writes on the Bilerico blog

Betsie has been sentenced to die in prison. Why? Because she was born with AIDS and spit on a cop. It was definitely a stupid action, but was it one that warranted that she should die locked up, alone, and away from her family?

The case is being championed by Bilerico's Bil Browning and Michigan Messenger's Todd Heywood.

Bil includes many details of Betsie's heart-breaking case, including the full letter from her mother, and information on how to help. His call to action is one that I hope my blog readers will follow:

Please take a moment to share this post on Facebook, tweet it, e-mail it or just spread it around via word of mouth. And when you've done that, do the most important part - contact the Executive Clemency Commission with the information below.

NOTE: When calling the four members of the Executive Clemency Commission, please reference the following:
Inmate Name: Betsie Gallardo at Broward Correctional Institution
Inmate DC#: Y42277

Please tell them: "It is already a crime that Betsy has spent time in jail for HIV-stigma and discrimination. I urge Florida's Executive Clemency Commission to grant Betsy Gallardo a medical clemency to allow her to go home to her family and die with dignity and respect.

US-based readers: please also sign this petition at change.org

Finland: Kenyan-born former 'erotic dancer' sentenced to 4 1/2 years for HIV exposure

2010-12-22T13:53:00.003Z

A 28 year-old Kenyan-born woman – who apparently worked as an "erotic dancer" to support herself after her marriage to her Finnish ex-husband ended – has been sentenced to 4 1/2 years in prison by a Tampere court for not disclosing that she was HIV-positive before having unprotected sex with 16 men during the five year period, 2005-2010.

However, she was only diagnosed in April 2006, and although at least one complainant was HIV-positive, the court was unable to prove the provenance of his infection. She was found guilty of 15 counts of attempted aggravated assault and one count of endangerment. (Update: a colleague in Finland tells me that the endangerment charge came from having unprotected sex after having an HIV test but before she knew the result.)

Details are sketchy, since the case was tried behind closed doors and all documents relating to the case have been sealed for 40 years.

The only English-language report comes from YLE News

The Pirkanmaa District Court in Tampere on Monday handed down a four-year, six-month prison sentence to a 28 year-old woman for endangerment and attempted aggravated assault, after having unprotected sex with several partners, even though she knew she was HIV positive. Altogether, there were 16 plaintiffs in the case.

The woman has also been ordered by the court to pay almost 20,000 euros in damages and 24,000 euros in court costs.

Described as an "erotic dancer" the woman engaged in unprotected sexual intercourse with numerous partners, even though she was diagnosed in April 2006 with HIV and was aware of the means and seriousness of transmission of the infection.

The defendant underwent a psychological examination, on the basis of which she was judged to have been mentally competent at the time of the acts. The woman worked as an erotic dancer in several cities, including Tampere, Lahti and Jyväskylä.

All the documents related to the case were ordered sealed for a period of 40 years.

This is the first reported case of an HIV-related prosecution in Finland since 2008, when a young Finnish man was found guilty of five counts of criminal HIV transmission and 14 counts of HIV exposure, originally sentenced to ten years in prison, and then given a further two years following an appeal. It is the 13th such case since prosecutions began in 1989. (Update: My Finnish colleague tells me there was another case earlier this year making the total 14.)

According to an earlier report by YLE News, the woman was arrested prior to February 2010. Before the police went public that month, seven men (of whom one claimed to have tested HIV-positive) came forward to claim they'd had unprotected sex with the woman without being informed by her that she was HIV-positive. The woman apparently consented to having her picture released,

in hopes that her other possible sex partners might have themselves tested for HIV.

The case was widely reported amongst Finnish-lanaguage media (see examples here and here via Google translate). Many of the stories' headlines refer to 'HIV-Rachel'. Apparently the woman sometimes used the name Rachel as a pseudonym, but the headlines have a more stigmatising meaning, and refer to the Biblical Rachel, who was associated with deception (although it was her father, sister and husband, who actually deceived, and not Rachel).

Her defence lawyer is quoted in one of these articles, saying that this was a "grossly harsh sentence".

Indeed it is. However, her prosection fits within the narrative of many of its northern European neighbours who appear to have a tendency to
a. prosecute foreign-born migrants from high prevalence countries who have moved to small towns or cities
b. prosecute 'sex workers' (Update: My Finnish colleague tells me that she was not a sex worker per se, but actually "an erotic dancer who paid taxes.")

In both cases the legal responsibility for HIV prevention appears to rest solely on the HIV-positive person, even though men have the power to use condoms and should be aware of the risks, especially when having sex with 'erotic dancers'.

Sweden: Underreported: The Link Between Julian Assange and Sweden’s Repressive HIV Law

2010-12-17T08:12:00.001Z

"The arrest of Wikileaks founder Julian Assange has focused a spotlight on Sweden’s supposedly liberal, human rights-based sex conduct laws," writes Julie Turkewitz on the Housing Works blog. (Housing Works is an AIDS advocacy organisation in New York.)

Julie and I have been corresponding since December 9th, when she emailed me with a query about Swedish laws that criminalise sexual contact without a condom. I also have been intrigued and perplexed by the Assange case and had been meaning to contact my esteemed colleague, Andreas Berglöf from HIV Sweden, who I thought may know about this arcane law.

Andreas confirmed what I already thought to be true: "There is no law in Sweden that prohibits unprotected sex. Unless you have an infection or disease that is included in The Swedish Communicable Disease Act, like HIV and other STI's. Then one also has a duty to inform about this."

I then suggested that Julie contact a smart Swedish journalist, Victor Bernhardtz, who had interviewed me in the summer. He highlighted the more recent report that one of the complainants in the Assanage alleges he had sex with her whilst she was asleep (which is, therefore, non-consensual) rather than the allegations of non-condom use.

"What is illegal is to engage in sexual acticity without consent, which is the case when the other person is asleep," he said in a brief email. "Everything points to that the charges against Assange are indeed quite valid."

Of note, my estimate in the article of the forced isolation of more than 100 people with HIV came via the Global Criminalisation Scan, which was informed by Andreas. Following the 2005 European Court of Human Rights ruling (Enhorn vs. Sweden) Sweden changed its policy which is why Andreas now estimates that, on average, one person with HIV is now isolated per year.

With her permission, Julie's entire article on the Housing Works blog is below.

The arrest of Wikileaks founder Julian Assange has focused a spotlight on Sweden’s supposedly liberal, human rights-based sex conduct laws, which allow for a rape conviction even when a perpetrator uses a low level of coercion.

The extradition case against Assange began when two Swedish women contacted authorities to compel him to take an STD test. As reported by Reuters, Assange may have tried to have sex with the women without a condom.

What STD are the women worried about? That hasn’t been made public. But if, as part of an STD test, Assange were to test positive for HIV, the legal consequences could be dire. When it comes to the virus, Sweden’s policies are far from “liberal” or “rights-based.” The country is home to some scarily repressive HIV criminalization laws, which have allowed for the forced isolation of at least 100 HIV-positive people.

“Sweden and its Nordic neighbors are pretty draconian in the way they use their laws to control the lives of people living with HIV and AIDS,” said Edwin Bernard, editor of HIV and the Criminal Law, an extensive summary of laws, prosecutions and responses to criminalization of HIV. “Sweden is by far the worst, though.”

According to the National AIDS Manual, the Scandinavian nation has prosecuted more people living with HIV per capita for exposure or transmission than any other country in the world.

Punishment under the Communicable Disease Act
Despite recent arguments from UN Special Rapporteur Anand Grover that HIV criminalization fuels stigma, discourages testing and undermines public health goals, Sweden continues to persecute HIV-positive people under its Communicable Disease Act.

The law mandates the “obligation to inform sexual partners about infection carrier status.” In practice, those convicted of violating the act are often subject to extensive punishment.

Perhaps most strikingly, the act allows for the compulsory isolation of an HIV-positive person if officials decide that he or she is “not ready to undergo the measures to prevent” transmission. The law places no limits on how long such cumulative isolation may continue. Detentions happen about once a year, according to Andreas Berglöf, organization manager at HIV-Sweden, but “just having the legal possibility is awful, we think.”

The National AIDS Manual offers a higher estimate, saying that at least 100 people have been isolated under this measure.

HIV-Sweden, an umbrella organization that works to protect HIV-positive persons, has documented at least 50 prosecutions and 38 convictions for nondisclosure since 1992, a fairly high number, considering there are just over 5,000 people in Sweden living with HIV.

Incarceration for nondisclosure can last up two to years, and up to 10 years if transmission occurs. The average sentence is five to 10 years. Damages of around 700,000 krona—or about $100,000—are not unusual if transmission occurs, according to a 2009 report from HIV-Sweden. And not surprisingly, foreign nationals are disproportionately affected by the policies.

The European Court of Human Rights has lashed out against Sweden’s repressive policies, saying in 2005 that Sweden had violated the right to liberty and security of an HIV-positive man forcibly detained for up to seven years.

No word on when or if Assange will head to Sweden to answer questions about alleged sexual misconduct—or if he’ll take STD tests. But with these laws on the books, who would?

Switzerland: Government ignores expert recommendation to decriminalise non-intentional HIV exposure and transmission

2010-12-08T17:50:00.004Z

The Swiss Government has ignored expert recommendations to decriminalise everything but intentional HIV exposure or transmission following a consultation on changing Article 231 of the Swiss Penal Code, according to a strongly worded press release from Groupe sida Genève issued yesterday.

At the International AIDS Conference in Vienna earlier this year, the Swiss Federal Commission for AIDS-related issues – the Swiss statement people – described how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. (Download the pdf here)

The law has only ever been used to prosecute people with HIV. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law.

The Swiss Federal Commission for AIDS-related issues issued a statement in September 2010 (available in English here) that stated:

[Current Swiss] legal practice is in blatant contradiction to the tried and tested Swiss Aids policy held by broad social consensus. Accordingly, the FCAI calls for the following requirements from the lawmakers and the practitioners of criminal law (public prosecution and judicial authorities):

1. Public prosecution and judicial authorities have to take into account the scientific findings on the infectiousness of HIV-positive persons under successful therapy (FCAI statement 2008). Persons, who are not considered to be infectious according to the FCAI criteria, shall not be punished. Any processes are to be stopped and previous sentences, when needed, are to be revised.

2. Also for HIV-positive persons, whose virus count is not yet under the detection limit, the risk of transmission is very low. The courts are therefore advised not to undertake hastily a possible deliberate action. The highest court of law of the Netherlands, in a leading decision in 2005, made an exemplary judgement in this regard.

3. The legislative body has to amend Art. 231 SPC such that amicable unprotected sexual contact may no longer be subsumed under this code. An opportunity for this is offered by the current (2010) revision of the epidemic law.

The draft of the proposed new Law on Epidemics removed much of the draconian provisions of Article 231, leaving only intentional exposure or transmission a criminal offence.

However, according to Groupe sida Genève

The present version put before the assembly maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.

Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.

The consequence is that Switzerland will move from having one of the most draconian and discriminatory laws on HIV exposure in the world to one that is similar to Canada's - making disclosure of HIV-positive status a defence to alleged exposure or transmission, in effect mandating disclosure before any kind of unprotected sex by someone aware they are living with HIV. This is a lost opportunity for Switzerland to lead the world in decriminalisation of non-disclosure, alleged exposure and non-intentional transmission (following the lead of The Netherlands in 2005).

Although a previous Geneva Court of Justice aquittal (and the upholding of the subsequent Federal Court appeal) now suggests that someone with an undetectable viral load would not be found guilty of HIV exposure (with or without disclosure), this is not the case in Switzerland's 25 other cantons.

As Groupe sida Genève point out this latest development "not only maintains the criminalisation of HIV-positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination."

I'll be posting more on this once I've digested all of the documents linked to in the press release below, and spoken with some insiders in Switzerland. But I join Groupe sida Genève in condemning "the backwards attitude" of the Swiss authorities.

Full press release below:

Groupe sida Genève denounces the proposed changes to art. 231 of the Swiss Penal Code. Exposure and transmission of HIV will remain a criminal offense despite best evidence that criminalisation is incompatible with the aims of successful general prevention programmes.

The executive branch of the Swiss government, the Federal Council, has introduced a bill in the federal assembly to revise the Federal Law on fighting infectious human diseases. (See the Federal Department of the Interior’s press release of Friday December the 3rd)

Included in the new provisions was one, article 86 (80 in the consultation version), to amend article 231 of the Swiss Penal Code incriminating the propagation of an infectious human disease.

The bill as it came out of the consultation process proposed to abrogate the paragraphs dealing with intentional and negligent exposure and transmission of HIV. Only the qualified form of malicious intent would have been indictable, the others would not have been considered offenses.

However, the bill, in the present version put before the assembly, maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.

Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.

Groupe sida Genève is convinced this amendment represents the complete opposite of the position taken by the Swiss Federal Commission for AIDS-related issues (FCAI) in its most recent Declaration on the criminality of HIV transmission. It not only maintains the criminalisation of HIV positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination.

Groupe sida Genève is dismayed by this proposal and would like to encourage all to join in our condemnation of the backwards attitude of the Swiss Authorities. Please give this information the widest possible distribution in your networks.

Background

All Swiss federal legislation goes through a consultation procedure where all concerned stakeholders can give their views on proposed legislation. Bills traditionally include the results of the consultation procedure as this ensures the bill achieves the greatest possible consensus.

Article 231, incriminating propagation of a human disease, is one of two provisions in the Penal Code under which persons accused of transmission and exposure to HIV are customarily indicted, the other being article 122 concerning grievous bodily harm.

Under article 231 the intentional transmission of a human disease is punished by a custodial sentence of not more than 5 years whilst the negligent transmission or exposure by a sentence of not more than 3 years. In both cases the minimum sentence is 30 day-fines (jour-amende).

Approximately 39 HIV positive persons have been sentenced under one or the other or a combination of both provisions. In 2009, the criminal chamber of the Geneva Cantonal Court dismissed a case of exposure based on the 2008 declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on infectiousness of HIV under effective ART and the expert testimony of Professor Bernard Hirschel. To date it remains unclear whether the decision will be make jurisprudence.

References and further reading

Federal department of the Interior press release on the Revision of the Federal law on the fight against Epidemics. 03.12.2010 (link)

Declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the criminality of HIV transmission. 18.11.2010 (PDF)

Summary of the declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the infectiousness of HIV on effective ART treatment (Swiss statement). 30.01.2008 (PDF in French) (Canadian HIV/AIDS Legal Network's English translation PDF) The full text of the declaration was published in: Schweizerische Ärztezeitung / Bulletin des médecins suisses / Bollettino dei medici svizzeri / 2008; 89:5)

Bill tabled in the federal assembly as PDF: (in French)(in German)(in Italian), 03.12.201

Message on the bill tabled in the federal assembly as PDF: (in French)(in German)(in Italian), 03.12.2010

Consultation draft of the bill as PDF: (in French)(in German)(in Italian), 08.01.2008

Report on the results of the consultation as PDF: (in French)(in German)(in Italian), 20.10.2008

“S” v. Procureur Général, Judgement, February 23rd 2009, Chambre pénale, Geneva. (PDF in French with an English translation by the Canadian HIV/AIDS Legal Network from the resources for lawyers and advocates webpage.)

US: Michigan bite man charged under anti-terrorism laws gets 11 months probation in plea deal (update-4)

2010-12-08T12:10:00.000Z

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 law

By 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.”

Canada: Quebec gay man arrested, remanded in custody for non-disclosure prior to bareback orgy

2010-12-01T09:15:00.001Z

A judge in Quebec has remanded a 32 year-old gay man in custody after the Crown prosecutor branded him a "danger to the public" following allegations that he did not disclose that he was HIV-positive with men he met for sex on the internet using the pseudonym bbackbottom31.

The man currently faces four charges relating to sex with two men during a bareback orgy – two aggravated assault charges and two aggravated sexual assault charges – but since his name and photo have appeared in the press along with the usual 'fishing expedition' from police to contact them if they have been in contact with man via the internet or in person, there are bound to be more charges.

In some of the most stigmatising reporting to date of a gay case of non-disclosure in Canada, several articles in Le Journal de Quebec (here and here, in French only) paint the man to be a sexual predator who didn't disclose "to make others pay" and his willing sexual partners to be innocent victims of sexual assault.

The reality of gay sexual mores is not so black and white. He advertised himself as a bareback bottom - and even if he didn't disclose his status, any gay man who chose to have unprotected sex with him should have been aware of the risks (which, as a recent case in British Columbia has shown may not actually reach the 'significant risk' test for disclosure of HIV-positive status).

This arrest and the ensuing publicity is a travesty.

Highlights (if I can call them that) of the two articles in English, using Google translate, are below

HIV positive, he recruited on the web

A public danger
The Crown prosecutor objected to his release given the seriousness of the charges. In all, four charges have been brought so far against this individual, two for aggravated assault and two for aggravated sexual assault. "There are different ways to commit aggravated assault. It can be wounding, maiming, disfiguring or, as is the case in this context, life-threatening danger," said Mr. Gagnon... "He sexually assaulted by not giving information that would have provided free and informed consent and, in parallel to this, he endangered the lives of others."

Victim of a web relationship
A resident of Quebec, [accused's name], 32, faces justice for having unprotected sex with alleged victims met on the internet, whilst he knew he was HIV-positive. Using gay sites to meet with his partners, [he] met at least two victims in recent weeks. Jimmy (not his real name) fell into his trap in the autumn of 2009. Since that time, he believes he had unprotected sex between seven and ten times with the defendant.

"When I met him, he assured me he was clean and safe. I was single in those days. Subsequently, when I had a boyfriend we met for threesomes," said the totally desperate 40 year-old. Jimmy will not know if he has contracted HIV for three months. Meanwhile, he is receiving a preventive treatment that gives him several side effects. His ex-boyfriend is also a complainant in the case.

[The article then says that Jimmy was told that the man was HIV-positive by a nurse when he was visiting him in hospital. When confronted, Jimmy was told it was none of his business. But Jimmy claimed he knew that the man continued to have unprotected sex with men he met on the internet.]

Act of revenge
The defendant frequented sites like Gay411 under the pseudonym bbackbottom31. Investigators believe they may have been other victims. At least two other men were allegedly involved in sexual activities between [the accused] and Jimmy and his partner. "You cannot gamble with the lives of people like that."...The orgy took place at the residence of [the accused], at [his streeet address].

[The final few sentences don't make sense as translated but appear to suggest that Jimmy thinks the accused didn't disclose as an act of revenge.]

Le prévenu faisait croire à ses victimes qu’il était représentant sur la route. [The accused gave the impression of his victims he was representing on the road.] [Il] aurait pu agir par vengeance. [He could have acted out of revenge. Se sachant atteint de la maladie, il aurait décidé d'en faire payer le prix aux autres. [Knowing the disease, he decided to make it pay to others.]

US: PBS 'In The Life' highlights criminalisation in 'Legalizing Stigma' segment

2010-12-01T00:01:00.003Z

In The Life, the longest running show on broadcast TV documenting the GLBT experience, is featuring the criminalisation of non-disclosure in the United States this month, starting today, World AIDS Day.

It's the first time that a nationally screened TV programme in the United States has tackled the issue with the depth and sensitivity required (notwithstanding the segment's 15 minute running time). Amber Hall, the segment's producer, showed excerpts today at a Congressional Briefing on criminalisation in Washington DC, which also featured an address by Congresswoman Barbara Lee (the only US member of the Global Commission on HIV and the Law). [Update: Barbara Lee did not attend the event but sent a member of her staff instead.]

(More on this and future US advocacy plans will be revealed following my trip to the US next week to speak at the FCAA 2010 AIDS Philanthropy Summit.)

I was actually interviewed for the show, but was left on the cuttingroom floor due to time constraints. I totally get that they needed US voices, and there are plenty - including my colleagues Sean Strub and Catherine Hanssens of the Positive Justice Project and the leading US academic researcher into the inpact of US disclosure laws, Carol Galletly. (Her most recent findings were reported at aidsmap.com in July) However, you can still see me at the end of the segement giving my presentation at the PJP launch in September.

You can watch a preview of the episode below. Visit In The Life's website to see the entire episode.

In related news, another interview that I did when in the US in September that finally gets an airing is with POZ magazine. It's six minutes of me talking about the problems with criminalisation in the US, and hopefully I get the message across!

Global: Powerful personal testimony and video highlight criminalisation concerns

2010-11-30T15:50:00.002Z

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 aidsmap.com 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.

KEY WITNESS FOR THE PROSECUTION

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.

RETHINKING CRIMINALISATION 

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.

INFLUENCING NEW ZEALAND POLICY

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.

Evidence: Claims that phylogenetic analysis can prove direction of transmission are unfounded, say experts

2010-11-26T10:59:00.001Z

I'm reproducing this news article I wrote for aidsmap.com in case anyone hasn't seen it, because it is a really important issue. Claiming that phylogenetic analysis is so reliable as to be able to 'prove' who infected who in a criminal court case is reckless and somewhat self-serving.

A report from the United States published last week in the Proceedings of the National Academy of Sciences claims to show for the first time that direction of HIV transmission from one individual to another for use as evidence in criminal trials can reliably be established by phylogenetic analysis. However, international experts in phylogenetics who have acted as forensic advisors in criminal courts tell aidsmap.com that the report "draws unwarranted conclusions".

The report, co-authored by Michael Metzker, associate professor at the Baylor College of Medicine Human Genome Sequencing Center and David Hillis, a professor of evolutionary biology at the University of Texas, details the phylogenetic analysis methodology used in two criminal HIV transmission cases in the United States, in Washington State in 2004 and Texas in 2009, respectively.

These cases were only the second and third times that phylogenetic analysis was used as evidence in a criminal prosecution in the United States, despite at least 350 convictions under HIV-specific and/or general criminal laws for HIV non-disclosure, alleged exposure and/or transmission since prosecutions began in the mid-1980s (CHLP, 2010). Of note, both of these cases involved allegations of multiple heterosexual transmissions from a single source. Such allegations are extremely rare in criminal cases.

Phylogenetic analysis requires the use of complex computational tools to create a hypothetical diagram (known as a phylogenetic tree) that estimates how closely related the samples of HIV taken from the complainant(s) and defendant are likely to be in comparison to other samples.

The report refers to several recent studies (including a 2008 study from Keele and colleagues) which suggest to the authors that a "significant genetic bottleneck" may occur during HIV transmission, and that at least three-quarters of infections may result from a single virus. It also notes that since HIV evolves rapidly following initial infection, this results in "increased diversity of HIV sequences within a newly infected individual."

However, the report argues that if blood samples are taken from the accused and complainant(s) "shortly after a transmission event" the population of viral sequences in one individual would be expected to be more closely related to the population in the other(s) than other populations of viral sequences used for comparison. This is known as a "paraphyletic relationship." The paper then suggests that "paraphyly provides support for the direction of transmission and, in a criminal case, could be used to identify the index case (i.e., source)."

In both cases, the investigators were blinded as to the identity of the accused and the complainants, which was only revealed in court once they had provided their report to the prosecution. Again, in both cases, the sample they identified as being the source of infection was that of the accused. It is unknown how much weight the judge and jury gave to the phylogenetic reports, but it is known that the prosecution provided a great deal of supporting evidence – including, in the Texas case, contact tracing and HIV testing of most of the complainants' prior sexual partners – and that it was the totality of such evidence that led to guilty verdicts and lengthy prison sentences in both cases.

The paper and its assertions have been widely disseminated via a press release and several articles primarily aimed at the scientific community. Such articles include quotes from the investigators that suggest their methods are unquestionably sound and it was this evidence alone that led to the guilty verdicts. "This is the first case study to establish the direction of transmission," Professor Metzker was quoted in an AFP story with the headline ' Lab detectives use science to nab HIV criminals'.

He asserted to the American Statesman that "[our analysis] provided sound scientific evidence of the direction of transmission, and from that we could identify the source." The article also quotes the main prosecutor in the Texas case, who characterises phylogenetic analysis as "good evidence". Of note, the defence attorney in the case is quoted as saying they were unable to find an expert to testify in court against the reliability of Hillis and Metzker's findings.

"It made a lot of difference in trying the case because we couldn't find an expert for our side," he said.

However, Professor Metzker's claims and the paper's assertion that he and his colleagues have established that their methodology is both a new and reliable method of proving the direction of transmission has been questioned by several international experts contacted by aidsmap.com. All of the experts have served as witnesses in criminal trials outside of the United States.

These experts all agree that phylogenetic analysis remains an informed but sometimes imperfect estimate of the relationship between viruses. Although there are a variety of methods by which it is possible to increase the confidence that the samples are very closely related in comparison to other samples, there could never be complete confidence that the defendant infected the complainant(s) based on phylogenetic analysis alone.

Anne-Mieke Vandamme, a professor at Leuven Catholic University and Rega Institute in Belgium, has serious reservations regarding the paper's assertions. "This paper draws unwarranted conclusions," she tells aidsmap.com. "There is still the possibility that there is a missing link, a consecutive transmission with an intermediate missing link. I would only use such paraphyletic clustering to exclude a direction of transmission. The elimination of all other possible contacts is something to be done outside the phylogenetic analysis."

Jan Albert, a professor at the Karolinska Institute and Karolinska University Hospital in Sweden, tells aidsmap.com that "the study suggests, but does not prove, transmission between the examined persons. The main reason for the caveat is that the analyses do not exclude the existence of unsampled persons belonging to the same clusters. The paraphyly does not exclude this possibility. In light of this it is surprising that only 20 local controls were investigated in the Washington case and none in the Texas case."

Thomas Leitner, staff scientist at Los Alamos National Laboratory in the United States, tells aidsmap.com that the methodology described in the paper to test the hypothesis of direction of transmission is not, in fact, new, and that along with co-author Walter Fitch he published a paper outlining a similar methodology eleven years ago. (Leitner T, Fitch WM 1999) He adds that his research suggests that even when all persons involved in an alleged transmission chain are sampled, it may still be the case that the two closest samples in a phylogenetic tree are two individuals who may not have ever met.

Professor Vandamme is also lead author of a paper currently in press with The Lancet Infectious Diseases along with several authors including Professor Albert and Dr Anna Maria Geretti, of University College London Medical School, Royal Free Hospital, in London, which highlights the substantial risk of miscarriages of justice based on a flawed view of the science behind phylogenetic analysis. It concludes, in concurrence with a briefing paper co-authored by Professor Vandamme and Dr Geretti and published by NAM and NAT in 2007, that the only ‘safe’ use of phylogenetic analysis in criminal HIV transmission cases is to exonerate the accused.

A fuller discussion of how phylogenetic analysis and other evidence can – and cannot – be used to establish the fact of transmission from the accused to complainant(s) in a criminal case can be found in the 'Proof' chapter of NAM's new international resource, HIV and the criminal law.

References

Scaduto DI et al. Source identification in two criminal cases using phylogenetic analysis of HIV-1 DNA sequences. Proceedings of the National Academy of Sciences, published online before print November 15, 2010, doi: 10.1073/pnas.1015673107, 2010.

Abecasis AB et al. Science in court: the myth of HIV ‘fingerprinting’. Lancet Infectious Diseases, 2010 (In Press).

Center for HIV Law and Policy (CHLP) Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions, Vol.1, CHLP's Positive Justice Project, First Edition, Fall 2010.

Leitner T, Fitch WM The phylogenetics of known transmission histories. Pp. 315-345 in K. A. Crandall. Molecular Evolution of HIV. Johns Hopkins, Baltimore, MD 1999.

Canada: Civil HIV exposure case over consensual lesbian sex in jail - analysis

2010-11-23T08:27:00.001Z

Last week, a woman in Kamloops, BC, arrested for drunkenness and who subsequently engaged in consensual lesbian sex with a fellow prisoner (revealed 10 days later as being HIV-positive) – and who were watched by seven members of the Royal Canadian Mountain Police – filed a lawsuit in the British Columbia Supreme Court seeking damages from the provincial and federal governments, the City of Kamloops, the seven policemen and the woman with HIV.

Now, journalist Shawn Syms has written a great analysis of the case for Xtra West. Highlights below and full text at Xtra.ca.

Describing herself as "horrified and scared and mad," the woman told the Kamloops Daily News that she feared for her health: "It was the worst thing in the world that could have possibly happened to me. Every day is a struggle."

Her legal advisor, Victoria personal-injury lawyer Erik Magraken, told the paper, "This is all about the duty to protect. If the RCMP has someone in their custody, they have a duty to protect that individual from harm. If harm comes from ignoring that duty, damages can follow."

According to Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, this is the first time to her knowledge that HIV non-disclosure has been implicated in a legal case involving lesbian sex.

Contacted by Xtra, Magraken refused to specify if the harm he was referring to is, in fact, HIV. He says he's speaking "very generally" to the notion of "any kind of harm." But according to the Daily News, Magraken did argue that "if they fail to disclose they have HIV, that is an aggravated assault and there can be no consent in those circumstances."

Well yes, criminal charges have been been laid on that basis more than once, but what's been affirmed by the courts is slightly different. To date, we know that HIV disclosure is required in instances where there is actually a serious risk of grevious bodily harm. (BC Crown spokesperson Neil MacKenzie told Xtra the police have submitted an investigative file on the case, but there has been no decision yet as to whether any charges will be laid, or against whom.)

The thing is, there's a difference between serious risk and virtually no risk. Health Canada describes the risk of woman-to-woman HIV transmission as "unlikely," and after more than two decades of tracking, the Centres for Disease Control in the US have no confirmed cases of lesbian HIV transmission in their databases.

Lesbian AIDS advocate Cindy Patton famously encapsulated safer-sex strategies back in the 1980s in this way: "Don't get semen in your anus or vagina." Since neither woman in this case has been identified as trans, we can probably assume that this risk did not come into play.

The case "shows how much fear, prejudice and ignorance around HIV and the risks of transmission can easily divert people's attention from what really matters - the issue of people's security and privacy while in custody," says Kazatchkine.

She points to a BC Supreme Court case from 2003 where a woman was awarded $15,000 in damages after being stuck with a syringe in a cab in Vancouver's Downtown Eastside. In that case, the plaintiff claimed she was plagued with fear of becoming HIV-positive for seven years after the incident, which is not medically plausible unless she subsequently got HIV from some other activity.

[...]

We can be fairly certain no HIV was transmitted in the jail cell that night. If the RCMP's original account is any indication, it appears two people who were equally willing - and equally intoxicated - engaged in erotic play, that neither took undue advantage of the other, and no one was genuinely placed at significant risk of any harm as a result of their tryst.

US: Positive Justice Project publishes essential new advocacy resource

2010-11-17T18:14:00.000Z

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)

France: Gay man imprisoned for two years for infecting partner; trial debates shared responsibility

2010-11-17T11:51:00.000Z

A gay man from the eastern French city of Besançon was sentenced to two years in prison last week for lying about his recently-learned HIV-positive status and then having unprotected sex with his ex- partner who is now also HIV-positive.

According to an article in Le Progres, the man, now 36, and his ex, now 29, began a relationship in 2005. They used condoms at first but after some time together decided to test for HIV so that they could have unprotected sex by mutual agreement.

But it was alleged that the accused lied to his partner, telling him that his HIV-positive test was negative. He told the court he had been "in denial" and apologised to his ex, according to a shorter AFP article, which also notes that it was only a matter of weeks before his ex discovered the letter from the HIV testing centre confirming his partner's HIV-positive status. The ex tested HIV-positive in July 2006.

The accused was charged with "administration of harmful substance causing mutilation or permanent disability." It was alleged that only the accused could have infected the complainant because the ex only had sex with accused, whereas the accused allegedly had multiple relationships. The reports do not mention whether phylogenetic analysis was used.

According to the AFP article, the trial included "a debate on the issue of shared responsibility in sexual matters, as opposed to the criminalisation of transmission" and the prosecutor took this principle into account by asking for a two year suspended sentence. However, last week, the court ruled that the accused bore full responsibility and was sentenced to two years in prison. His lawyer, Claude Varet, plans to appeal.

A statement from French HIV prevention group, The Warning, notes the issue highlighted by this case.

This trial confirms what surveys have shown for more than fifteen years: that HIV-negative individuals stop using condoms when the relationship becomes stable. This "standard" imposes a terrible strain for people with HIV because there continues to exist a high degree of discrimination and stigma against them.... Indeed, how do they disclose their HIV-positive status without fear when the likely result is the risk of rejection and the end of the relationship.

Opinion: I Am HIV Positive and I Don’t Blame Anybody—Including Myself

2010-11-12T17:19:00.001Z

A few months ago, I received an email from a young researcher and activist living with HIV. Kirk Grisham said some very nice things about my work, and told me that I had inspired him to both write about the issues behind criminalisation, as well as to 'come out' publically about his HIV status.

The result is this fantastic analysis for ColorLines around personal responsibility for HIV prevention that really expresses many of my own thoughts on the issue, but in a much more accessible way than I could have ever achieved.

Kirk concludes that for him, criminalisation means that

I bore no responsibility for the epidemic, until I had HIV, when it became entirely my problem.

I'm including the opening paragraph here. Click on the link to read the entire article at ColorLines.

I am HIV positive, and I don’t blame anybody for it—not myself or anybody else.

He didn’t rape me and he did not trick me. It was through our unprotected sex that I became HIV positive. Since seroconverting, I have been very conscious of the language I use to discuss transmission, particularly my own. To say “he gave me HIV” obscures the truth, it was through a mutual act, consensual sex, that I became HIV positive. When speaking to him a couple months after my diagnosis I gathered that he knew he was positive when we had sex. But that is beside the point; my sexual health is mine to control, not his.

Read the entire article at ColorLines.

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

2010-11-11T16:37:00.002Z

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.

Ukraine: Revised HIV law may no longer mandate disclosure

2010-11-11T16:00:00.000Z

A new version of Ukraine's HIV-specific law, adopted by the Ukrainian Parliament in its first hearing on 21 October, promises several positive changes, including removal of the statute mandating disclosure of known HIV-positive status prior to any activity that may risk exposure.

According to a press release from the International AIDS Society, the following changes will be implemented:

People living with HIV will no longer be barred from entering, staying or seeking residence in Ukraine based solely on HIV positive status;
NGOs providing HIV treatment, prevention and care services will have the right to apply for state contracts
People living with HIV will have the right to seek compensation for the unlawful disclosure of their HIV status
HIV-positive injecting drug users (IDUs) and other IDUs will have the right to receive Opioid Substitution Therapy (OST)
People living with HIV will be encouraged to disclose information about the risk of HIV transmission, however they will no longer be required by law to disclose their status to partners

WHO Europe notes

The revised law is the result of two years intensive and collaborative work, including the involvement of non-governmental sector, especially All-Ukrainian Network of People living with HIV, the support from the USAID-funded HIV/AIDS Service Capacity Project in Ukraine and the United Nations Team Group on HIV/AIDS. The change would not have been successful without a close collaboration with the Parliamentarian Committee on Public Health and its chair Dr Tatyana Bakhteeva who was very much committed to the issue.

Dr Volodymyr Kurpita, Executive Director of All-Ukrainian Network of People living with HIV told me in an email that since the final version of the revised Prevention of AIDS and Social Protection of Population Act is still awaiting parliamentary approval in the second hearing, the final wording of the law on HIV disclosure is still not known, but "we can highlight it is more progressive and less restrictive as previous one."

In Ukraine, newly diagnosed individuals must undergo a period of mandatory hospitalisation during which it is expected that they will sign an undertaking to obey this 1998 disclosure law. The reckless or intentional “conscious exposing to danger of infection [HIV exposure], or infection [HIV transmission]” is also subject to prosecution, with a maximum penalty of ten years’ imprisonment. There have been at least six prosecutions and four convictions under these laws.

US: Sean Strub blogs on why tackling criminalisation is crucial

2010-11-09T09:08:00.001Z

POZ magazine founder, fellow anti-criminalisation advocate – and friend – Sean Strub, recently joined forces with the incredible Catherine Hanssens and her amazing team at the Centre for HIV Law & Policy to launch the Positive Justice Project.

In his latest blog post at POZ.com, Criminalization 101, he explains why the criminalisation of non-disclosure, exposure and non-intentional transmission has become one of the most pressing issues of our time.

I'm including his introduction here. Read the entire post at POZ.com.

Over the last several years, as I've talked to a wider circle of advocates, people with HIV and policy leaders about HIV criminalization, it has become apparent to me that many people are not well-informed on the topic. Some instinctively favor prosecuting people with HIV for not disclosing their HIV status prior to intimate contact, but these opinions usually evolve quickly as a person learns more about the issue.

Here's a background piece I have been using--and continuing to modify--to introduce the issue to others. It is a bit lengthy for a blog post. If you would like a footnoted and properly formatted version emailed to you, just shoot me a note at sstrub (at) hivlawanndpolicy.org. I look forward to any comments or suggestions.
(Read more at POZ.com)

South Korea: Court refuses arrest warrant for teenage sex worker alleged to have exposed 20 men without disclosure

2010-10-31T09:59:00.001Z

A 19 year-old female sex worker from the southern port of Busan was picked up by South Korean police last week after her father alleged she had unprotected sex with up to 20 male clients since testing HIV-positive in February.

However, according to an AFP report in The Straits Times

the court in Busan rejected a request from police to issue an arrest warrant for the woman, saying she should instead be sent to hospital for treatment.

A second report, from Asiaone.com notes that the young woman

reportedly said she suggested using contraceptives but her male partners refused to do so.

Of note, South Korea has no HIV-specific criminal laws.

In 2009 a 26-year-old HIV-positive man became the first person prosecuted under the country's public health laws for having unprotected sex without first disclosing his HIV status. The man reportedly had sex with at least ten women. He received an 18-month prison sentence. The case occasioned calls for tougher laws for such conduct.

US: Positive Justice Project launches, aims to remove HIV-specific laws

2010-09-28T05:23:00.000+01:00

Press Release: HIV Advocacy Group Launches Positive Justice Project To Fight Stigma and Discrimination by Repealing HIV-specific Criminal Statutes

The Positive Justice Project, a campaign of the Center for HIV Law and Policy, was launched this week to combat HIV-related stigma and discrimination against people with HIV by the criminal justice system. A day-long organising meeting, held September 21st in New York, included more than 40 participants from legal, government, grant-making and community service organisations.

The focus of the Positive Justice Project is the repeal of “HIV criminalisation” statutes — laws that create HIV-specific crimes or which increase penalties for persons who are HIV-positive and convicted of criminal offences.

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

A man with HIV in Texas who is now serving 35 years for spitting at a police officer;
A man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom;
A woman with HIV in Georgia, who was sentenced to eight years imprisonment for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV-positive status;
And a man with HIV in Michigan who was charged under the state’s anti-terrorism statute with possession of a “biological weapon,” after an altercation with a neighbour.

In none of the cases cited was HIV transmitted. Actual HIV transmission—or even the intent to infect—is rarely a factor in HIV criminalisation cases.

Instead, most prosecutions are not for HIV transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing claims about verbal consent that are nearly impossible to prove. Anti-criminalisation advocates support prosecution only in cases where the intent to harm can be proven.

HIV criminalisation undercuts the most basic HIV prevention and sexual health message, which is that each person must be responsible for his or her own sexual choices and health. Criminalisation implies a disproportionate responsibility, providing an illusion of safety to the person who is HIV-negative or who does not know his or her HIV status.

As a result, ignorance of one’s HIV status is the best defence against prosecution in these cases, ultimately providing a disincentive to testing and self-awareness. Only by getting an HIV test and knowing one’s HIV status is one subject to arrest and prosecution. This flies in the face of established evidence that it is those who are untested – i.e., those who are safe from prosecution – who most frequently transmit HIV.

Research has demonstrated that HIV criminalisation statutes do nothing to reduce HIV transmission and, in fact, because they further stigmatise already-marginalised populations and discourage HIV testing, they may contribute to further HIV transmission.

The Center for HIV Law and Policy also this week released a draft of the first detailed analysis of HIV-specific laws and prosecutions in all 50 states, U.S. territories and the military. With more than 400 prosecutions to date, the U.S. has had more HIV-specific criminal cases than any other nation on earth.

According to the Positive Justice Project organisers, the challenge of repealing laws that punish people on the basis of their HIV status cannot be met without:

Broader public understanding of the stigmatising impact and negative public health consequences of criminalisation statutes and prosecutions that are perpetrated under their guise;
Greater community consensus on the appropriate use of criminal and civil law in the context of the HIV epidemic;
Clear, unequivocal leadership and statements from federal, state and local public health officials on the causes and relative risks of HIV transmission and the dangers of a punitive response to HIV exposure and the epidemic;
And a broader and more effective community-level response to the ongoing problem of HIV-related arrests and prosecutions.

“Misperceptions about the routes and risks of HIV transmission continue to fuel fear and myths about people with HIV that leads to lower acceptance of HIV testing and greater stigma and discrimination. Nearly 30 years into the epidemic, people still fear contact with people with HIV, working with them or allowing them near their children,” said Catherine Hanssens, the founder and executive director of the Center for HIV Law and Policy.

“HIV-specific laws have created a viral underclass. There is no more extreme manifestation of stigma than when it is enshrined in the law,” said Sean Strub, who has lived with HIV for more than 30 years. Strub is a senior advisor with the Center for HIV Law and Policy and joined in launching the Positive Justice Project.

Vanessa Johnson, a Positive Justice Project planning committee member and Executive Vice President of the National Association of People with AIDS, said, “When the government uses the fact of a person’s HIV test and subsequent result to turn around and encourage prosecution of that person for behavior that otherwise is legal for people who are untested, it engages in dangerously confusing double-speak that undermines the very HIV testing and prevention goals it claims to prioritize.”

US: Majority of gay US men support criminal non-disclosure laws

2010-09-21T12:28:00.000+01:00

The overwhelming majority (70%) of HIV-negative and untested men (69%) in the United States support prosecutions for not disclosing known HIV-positive status before sex that may risk HIV transmission, according to a new study by Keith J. Horvatha, Richard Weinmeyera and Simon Rosser at the University of Minnesota, Minneapolis. Even more disturbing is the fact 38% of HIV-positive men endorsed criminalisation.

The most worrying finding is that suppport of non-disclosure laws strongly suggested a reliance on disclosure as an HIV prevention method. As I have discussed in HIV and the criminal law, this is unreliable and problematic.

There's a summary of the study's findings at aidsmap.com and the full text article can be downloaded here.

Global: HIV and the criminal law book now available; hear me speak in Ottawa and Toronto

2010-09-17T08:43:00.001+01:00

The next few weeks sees my involvement in a flurry of anti-criminalisation advocacy in the United States and Canada, coinciding with the publication of the book version of the new international resource I produced for NAM and an article in HIV Treatment Update summarising the current global situation.

HIV and the Criminal Law


Email: info@nam.org.uk to order a copy

Preface by The Hon. Michael Kirby AC CMG and Edwin Cameron, Justice of the Constitutional Court of South Africa.

Introduction How this resource addresses the criminalisation of HIV exposure and transmission.

Fundamentals An overview of the global HIV pandemic, and the role of human rights and the law in the international response to HIV.

Laws A history of the criminalisation of HIV exposure and transmission, and a brief explanation of the kinds of laws used to do this.

Harm Considers the actual and perceived impact of HIV on wellbeing, how these inform legislation and the legal construction of HIV-related harm.

Responsibility Looks at two areas of responsiblity for HIV prevention: responsibility for HIV-related sexual risk-taking and responsibility to disclose a known HIV-positive status to a sexual partner.

Risk An examination of prosecuted behaviours, using scientific evidence to determine actual risk, and how this evidence has been applied in jurisdictions worldwide.

Proof Foreseeability, intent, causality and consent are key elements in establishing criminal culpability. The challenges and practice in proving these in HIV exposure and transmission cases.

Impact An assessment of the impact of criminalisation and HIV – on individuals, communities, countries and the course of the global HIV epidemic.

Details: international resource and individual country data A summary of laws, prosecutions and responses to criminalisation of HIV exposure or transmission internationally, and key sources of more information.

HIV Treatment Update

The August/September issue of NAM's newsletter, HIV Treatment Update, features a 2500 word article, 'Where HIV is a Crime, Not Just a Virus', that examines the current state of criminalisation internationally.

Here's the first part: click on the image to download the complete article.

Since 1987, when prosecutions in Germany, Sweden and the United States were first recorded, an increasing number of countries around the world have applied existing criminal statutes or created HIV-specific criminal laws to prosecute people living with HIV who have, or are believed to have, put others at risk of acquiring HIV.

Most of the prosecutions have been for consensual sexual acts, with a minority for behaviour such as biting and spitting.

In the majority of these cases, HIV transmission did not occur; rather, someone was exposed to the risk of acquiring HIV without expressly being informed by the person living with HIV that there was a risk of HIV exposure.

In the cases where someone did test positive for HIV, proof that the defendant intended to harm them and/or was the source of the infection has often been less than satisfactory.

South Africa’s openly HIV-positive Constitutional Court Justice, Edwin Cameron, called for a global campaign against criminalisation at the 17th International AIDS Conference in Mexico City in 2008, declaring: “HIV is a virus, not a crime.”

Two years later, the discussion for people working in the HIV sector has moved on from a debate about whether such laws and prosecutions are good or bad public policy to one on how to turn the tide and mitigate the harm of criminalisation. Most of them advocate, in the long term, for decriminalisation of all acts other than clearly intentional HIV transmission. This, however, is a debate that many people outside the HIV sector have yet to even start.

The Positive Justice Project

Next Tuesday, September 21st, I'll be joining a group of US anti-criminalisation advocates for a meeting in New York to discuss how to move towards mitigating the harm of US disclosure laws and prosecutions for HIV exposure and non-intentional transmission.

The goals of the Positive Justice Project campaign include:

Broader public understanding of the stigmatizing impact and other negative public health consequences of criminalization and other forms of discrimination against people with HIV that occur under the guise of addressing HIV transmission.
Community consensus on the appropriate use of criminal and civil law in the context of the HIV epidemic.
Clear statements from lead government officials on the causes and relative risks of HIV transmission and the dangers of a criminal enforcement response to HIV exposure and the epidemic.
A broader, more effective community-level response to the ongoing problem of HIV-related arrests and prosecutions.
Reduction and eventual elimination of the inappropriate use of criminal and civil punishments against people with HIV.

Ottawa: September 29th 6pm-8pm

Click on the flyer to download

I'll be in Canada's capital, Ottawa, on Wednesday September 29th to speak about my experiences of blogging on criminalisation worldwide, and to provide examples of international anti-criminalisation advocacy that Canadian advocates might find useful in their fight against the ramping up of charges for non-disclosure and the irrational and scare-mongering response to accusations of non-disclosure from law enforcement.

Ottawa has become ground zero for anti-criminalisation advocacy in recent months following the arrest and public naming and shaming of a gay man for non-disclosure. Following community outrage at the man's treatment, the Ottawa Police Service Board rejected calls to develop guidelines for prosecution for HIV non-disclosure cases.

The meeting will also feature several leading lights in Canadian, if not global, anti-criminalisation advocacy: Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network; HIV-positive advocate David Hoe; and Eric Mykhalovskiy, Associate Professor at York University, Department of Sociology.

Toronto: September 30th 6.30pm-8.30pm

Click on image for link to Facebook event page

The following day, Richard, Eric, myself and a fourth panellist (TBC) will be presenting at Silence, Sex and Science, Thursday, September 30, 2010, 6:30 to 8:30 pm at Oakham House, 55 Gould Street, Toronto.

I hope to meet any blog readers who can make it to either of the Canadian meetings, and will, of course, be posting more about these meetings in the future.

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

2010-09-13T10:14:00.000+01:00

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.

Canada: British Columbia man guilty again following retrial (update)

2010-08-24T16:00:00.001+01:00

Update August 24th 2010

Adrian Nduwayo, has been found guilty again of five charges of aggravated sexual assault involving five women, three of whom subsequently tested HIV-positive, following a retrial at the BC Supreme Court.

He was oringally guilty of the same charges, plus one of attempted aggravated sexual assault and one of sexual assault in 2005 and sentenced in 2006 to 15 years in prison. This time, he was acquitted of those two other charges.

Details of the reasons for the original appeal are in my original post, below.

According to the report in Vancouver's mid-market tabloid, The Province, the retrial hinged on the issue of lack of consent due to non-disclosure.

Justice James Williams said that, although the sexual relations were "ostensibly consensual," that consent was taken away when Nduwayo failed to tell the women that he was HIV positive. "The issue of consent is not as simple as yes or no," Williams said. "It's more complicated than that." In the five cases where Nduwayo was convicted, Williams said he believed that each woman would not have had sex with Nduwayo if they had known about his HIV. He was also satisfied that their lives were endangered by Nduwayo's actions.

In the reports of the original trial, below, Mr Nduwayo testified he always used condoms and didn't need to disclose. The complainants said that he didn't always use condoms. It is unclear whether Justice Williams considered the issue of condom use as reducing the risk of HIV transmission to below Cuerrier's threshold 'significant risk'. If not, there's may well be further confusion regarding condom use and obligations to disclose in Canada that can only be satisfied with the production of police and prosecutorial guidance.

Sentencing submissions will take place on September 10.

Original post June 23rd 2008

An HIV-positive British Columbia man who was found guilty in 2005 on five counts of aggravated sexual assault (for HIV exposure), one of attempted aggravated sexual assault and one of sexual assault, and sentenced in 2006 to 15 years in prison, has won an appeal against his original trial and will be retried.

According to the report in the Bugle-Observer, Adrian Nduwayo's lawyer successfully argued that the jury was not properly instructed to consider each count separately and not to use evidence from one count when deciding guilt on others, compromising his right to a fair trial.

I have also reprinted a couple of articles published at the time of Mr Nduwayo's original guilty verdict and sentencing, for background, below. Interestingly, although three of the complainants subsequently tested HIV-positive, Mr Nduwayo was not tried for criminal HIV transmission - and it's not clear from the reports why that was the case.

Appeal court orders new trial for HIV-positive B.C. man convicted of sex assaults
Wednesday June 18th, 2008
THE CANADIAN PRESS

VANCOUVER - The B.C. Court of Appeal has ordered a new trial for an HIV-positive man who was convicted of sexually assaulting several women for having unprotected sex with them.
Adrian Nduwayo was given a 15-year sentence in 2005 for five counts of aggravated sexual assault, one of attempted aggravated sexual assault and one of sexual assault.
The incidents involved seven different women who said Nduwayo had sex with them without telling them he was HIV-positive and without a condom, while he insisted he did use protection.
But Nduwayo appealed his convictions, arguing that the jury was not properly instructed to consider each count separately and not use evidence from one count when deciding guilt on others.
The court of appeal agreed, saying the trial judge's charge to the jury didn't include adequate cautions on that issue.
The court says the fairness of the trail was compromised and has ordered a new trial.

Jury finds B.C. man guilty of spreading HIV
Wed. Dec. 14 2005

CTV.ca News Staff
An HIV-positive B.C. man was found guilty Tuesday night of committing sex crimes for having unprotected sex with women to whom he did not reveal his condition.
A jury in Westminster, B.C. convicted Adrien Nduwayo, 36, of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
"The message this sends I think is when you are HIV-positive you have a positive duty to disclose that fact to any perspective partners that you have," Crown counsel Andrew MacDonald said, minutes after the verdict was released.
He said that all of the women who testified against their former lover showed "tremendous amounts of courage and fortitude."
The charges relate to Nduwayo's failure to disclose his virus and engage in unprotected sex with seven women between 2000 and 2003.
Three of those women now have HIV, the virus that causes AIDS.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn't have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them -- and that even then he often did not.
Defence lawyer Paul McMurray said outside the court that Nduwayo's defence was that all of his sexual partners in question were willing partners and that the fact he used a condom was sufficient in law to maintain their consent.
Nduwayo has said he didn't tell some of his lovers that he was HIV-positive because they didn't ask.
Some of them found out about Nduwayo's condition when they saw news reports that the police were looking for him for allegedly spreading the virus, court heard.
"I think we're dealing with an area where there was, and is, some uncertainty," McMurray said outside court.
"Everybody I think accepts that you're supposed to disclose and you're supposed to wear condoms but this falls short of that and that's the difficulty here."
No date has been set for a sentencing hearing.

B.C. man sentenced to 15 years for spreading HIV
Fri. Mar. 3 2006
CTV.ca News Staff
An HIV-positive man was sentenced to 15 years in prison for having unprotected sex with seven women to whom he did not reveal his condition.
Before he was sentenced in B.C. Supreme Court in New Westminster, Nduwayo was permitted to address the court.
When he stood up, he went on a lengthy tirade -- speaking directly to his accusers and reducing some to tears.
"I feel very bad for these girlfriends who were infected. I did not mean to infect them," Nduwayo said.
Later, he added: "One day I will prove my innocence."
Justice John Truscott sentenced Nduwayo to 15 years after deducting two years for time already served.
In December, Nduwayo was found guilty of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
"The combined effect of the number of counts that we were dealing with in this case, resulted in the sentence being longer than any others that have been previously been imposed," Crown counsel Andrew MacDonald told CTV Vancouver.
Nduwayo was accused of deceiving sexual partners about his HIV status and deliberately engaging in unprotected sex between 2000 and 2003. Three of those women now have HIV, the virus that causes AIDS.
"Clearly the complainants who have been infected with the HIV virus have had a serious and devastating toll taken on their lives," MacDonald said.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn't have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them -- and that even then he often did not.
Meanwhile, some AIDS groups argue that cases like Nduwayo's should not be criminalized.
"We feel that criminalization has the potential to deter people from testing," said Wayne Campbell, with the British Columbia Persons with AIDS Society. "We encourage people to get tested, every sexually active adult, should be tested every six months."
With a report from CTV Vancouver's Michele Brunoro

Canada: New report calls for prosecutorial guidelines to establish 'significant risk'

2010-08-24T09:57:00.001+01:00

A new report, launched at AIDS 2010 in Vienna last month, recommends that the Ontario Ministry of the Attorney General establish a consultation process to inform the development of prosecution guidelines for cases involving allegations of non-disclosure of sexually transmitted infections, including HIV.

HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario contributes to the development of an evidence-informed approach to using the criminal law to address the risk of the sexual transmission of HIV infection in Ontario, and offers the most comprehensive, current discussion of the criminalisation of HIV non-disclosure in Canada.

The report was triggered by the absence of policy-based discussion of this issue amongst key decision makers in government and by community concerns about the intensified use and wide reach of the criminal law in circumstances of HIV non-disclosure.

In Canada, people living with HIV have a criminal law obligation to disclose their status before engaging in activities that pose a “significant risk” of HIV transmission. The report emphasises that uncertainties associated with that obligation and interpretations of the obligation that are not informed by current scientific research on HIV transmission risks are foundational to current problems in the use of the criminal law to regulate the risk of the sexual transmission of HIV and explores various forms of evidence relevant to a thorough policy consideration of the use of the criminal law in situations of HIV non-disclosure in sexual relationships.

York University has produced a 1200 word pdf summary of the report which I'm including in its entirety below. A pdf of the entire report can be downloaded here.

Title: The criminal law about sex and HIV disclosure is not clear

What is this research about?

According to the Supreme Court of Canada, HIV-positive people are required to disclose their status before engaging in sexual activities that pose a “significant risk” of transmitting HIV to a sex partner. Canadian courts, however, have yet to clearly define what sex acts, in what circumstances, carry a “significant risk.” This has led to an expansive use of the criminal law and created a problem for people with HIV—they can face criminal charges even though the law is not clear about when they must tell sex partners about their HIV. For example, people with HIV who are taking anti-HIV medications are much less likely to transmit HIV during sex, even where no condoms are used. But Ontario police and Crown Attorneys continue to interpret “significant risk” broadly. In fact, charges have been pursued in cases where, on a scientific level, there is little risk of HIV transmission.

This uncertainty has created problems not only for people with HIV but also for public health staff, and health care and social service providers. It has challenged these front-line workers in their attempts to counsel and support people with HIV. It has also caused many people with HIV to be further stigmatized. The media, in its coverage of these cases, has tended to exaggerate the risk of HIV transmission at a time when more and more experts have come to think of HIV as a chronic and manageable infection.

Despite these problems, and over 100 criminal cases in Canada, there has been a lack of evidence to inform public discussion about this important criminal justice policy issue. In Ontario, policy-makers have not weighed in publicly on the criminalization of people who do not reveal to their sex partners that they have HIV.

What did the researchers do?

A project team, led by Eric Mykhalovskiy, Associate Professor in the Department of Sociology at York University, set out to explore how the criminal law has been used in prosecutions involving allegations of HIV non-disclosure. The team included members of community organizations in Toronto and front-line workers, some of whom are living with HIV. Their goal was to create evidence and propose options to guide policy and law reform. They created the first national database on criminal cases of HIV non-disclosure in Canada. Professor Mykhalovskiy interviewed over 50 people with HIV, public health staff, and health care and social service providers to find out how the criminal law is affecting their lives or their work—another Canadian first.

What did the researchers find?

From 1989 to 2009, Canada saw 104 criminal cases in which 98 people were charged for not disclosing to sex partners that they have HIV. Ontario accounts for nearly half of these cases. Most of the cases have occurred since 2004. Half of the heterosexual men who have been charged in Ontario since 2004 are Black. Nearly 70% of all cases have resulted in prison terms. In 34% of these cases, HIV transmission did not occur.

Looking at the cases in Ontario and Canada, the researchers found inconsistencies in the evidence courts relied on to decide whether a sex act carried a significant risk of HIV transmission. They also found inconsistencies in how courts have interpreted the legal test established by the Supreme Court, and inconsistencies between court decisions in cases with similar facts. It appears, in some cases, that police and Crown prosecutors have not been guided by the scientific research when deciding whether to lay charges or proceed with a prosecution.

Because it is important to understand the scientific research when assessing whether there is a “significant risk” of HIV transmission during sex, the researchers included in their report a succinct summary of the leading science. The risk, in general, is low. Activities like unprotected sexual intercourse carry a risk that is much lower than commonly believed. Most unprotected intercourse involving an HIV-positive person does not result in the transmission of HIV. But the risk of transmission is not the same for all sex acts and circumstances. Antiretroviral therapy, however, can reduce the amount of HIV in a person’s bloodstream and make the person less infectious to their partner. Also, because of antiretroviral therapy, HIV infection has gone from being a terminal disease to a chronic, manageable condition in the eyes of many experts and people living with the virus.

Many people with HIV who were interviewed remain concerned that even if they disclose their HIV, their sex partners might complain to police. Health care and service providers stated that they are confused by the vagueness of the law. They also stated that criminalizing HIV non-disclosure prevents people from seeking the support they need to come to grips with living with HIV and disclosing to partners. But people with HIV and their providers have many suggestions for improving public policy and the law. The “significant risk” test needs to be clarified. The public health and criminal justice systems need to work together. And policies and procedures to guide Crown Attorneys need to be put in place.

How can you use this research?

Policymakers have several options to respond to the lack of clarity in the law and the resulting expansive use of the law. They can continue to let police, Crown Attorneys, and courts deal with cases as they arise. They can work to amend the Criminal Code. But the best solution, in the short term, would be the development of policy and procedures to guide Crown Attorneys working on these types of cases. The Ontario Ministry of the Attorney General should establish a consultation process to help develop policy and procedures for criminal cases in which people have allegedly not disclosed that they are HIV-positive to their sex partners.

What you need to know:

The criminal law can lead to very serious consequences for people who are charged or convicted. So policymakers need to make sure that the criminal law about HIV disclosure is clear and clearly informed by scientific research about HIV transmission. They also need to look to research to assess whether the law is having unintended consequences that get in the way of HIV prevention efforts.

About the Researchers:

Eric Mykhalovskiy is an Associate Professor and CIHR New Investigator in the Department of Sociology. Glenn Betteridge is a former lawyer who now works as a legal and health consultant. David McLay holds a PhD in biology and is a professional science writer.

This Research Snapshot is from their report, “HIV Non-disclosure and the criminal law: Establishing policy options for Ontario,” which was funded by the Ontario HIV Treatment Network and involved a research collaboration between York University, Canadian HIV/AIDS Legal Network, HIV and AIDS Legal Clinic (Ontario), Black Coalition for AIDS Prevention, AIDS Committee of Toronto, and Toronto PWA Foundation.

US: Michigan woman gets 11 months for non-disclosure

2010-08-20T12:21:00.000+01:00

A 54-year-old woman has been sentenced to 11 months in prison to failing to inform her male sex partner that she was HIV positive under Michigan's disclosure laws.

Todd Heywood of the Michigan Messenger covers the case in two reports covering her March arrest and her sentencing following her 'no contest' plea.

She is accused of failing to tell a 45-year-old Traverse City man that she was HIV-positive before engaging in sex with him. Police say she had sex with him six times June 2009 and January [2010]... [She] told the court she had recently moved to Michigan, and owned nothing, “just my clothes.”... She told the court she was a recovering cocaine and alcohol addict, and had moved to Michigan from Florida....

[Earlier this week, she] pleaded no contest to failing to inform her male sex partner that she was HIV positive. She has been sentenced to 11 months in jail, inpatient drug rehabilitation and five years of probation by an Isabella County Circuit Court Judge. While the woman’s viral load and other factors determining the infectiousness of her virus were not disclosed, or discussed, Judge Mark Duthie called her behavior “reckless and dangerous,” reports the Mt. Pleasant Sun....

She has pleaded no contest on similar charges in Clare county stemming from the same relationship with the Traverse City man. She is expected to be sentenced in that case next month. The woman’s male partner did not attend the Isabella County sentencing of the woman. “He’s embarrassed to have his name on the charge,” Chief Assistant Isabella County Prosecutor Risa Scully told the Sun.

Todd also very helpully highlights myriad problems with Michigan law as it currently stands.

Michigan disclosure law is considered “overly broad,” and “open for abuse” by experts. Under the law, before any penetration “however slight” occurs, an HIV-positive person must disclose their HIV status to a partner. The law does not criminalize the sharing of needles, which is a well known mode of transmission for HIV, however, it does criminalize sex toy use without a disclosure. The Centers for Disease Control and Prevention in Atlanta has never identified a case of HIV where the virus was transmitted by a sex toy.

Michigan is one of 32 states with an HIV-specific criminal law. Most of the laws were passed in the late 80s and early 90s, before the discovery of powerful anti-retroviral medications which dramatically decrease the progression of HIV infection. In July, President Barack Obama issued the nation’s first National HIV/AIDS Strategy and part of the strategy includes reviewing and repealing the HIV-specific criminal laws because “the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”

Canada: 2 cases - Alberta man gets three years for non-disclosure; woman refugee arrested and charged in Ontario

2010-08-19T18:52:00.001+01:00

A 44 year-old man from Edmonton, Alberta who pleaded guilty to aggravated assault for not disclosing that he was HIV-positive during a one-off consensual encounter with a woman – whilst his viral load was undetectable – has been has been sentenced to three years in prison.

According to the Toronto Sun report, he had been charged with aggravated sexual assault but was "allowed to plead guilty to the lesser offence of aggravated assault." The report doesn't mention it, but obviously the woman did not test HIV-positive given the insignificant risk of transmission.

Apparently, the man's roommates turned him in.

Prosecutor Avril Herron told court Gilbertson was arrested June 3 after police were called by his roommates, who had come home and found him having sex with the woman and were concerned about his HIV status. Herron said the woman was drunk and initially found passed out and had some problems telling police the details of what exactly had happened.

In words that parallel Nadja Benaissa's recent statement to a Darmstadt court, he told the court that he had "made a bad choice," but said "in no way was it deliberate."

The provincial court judge questioned Gilbertson's guilty plea after he said he didn't mean to do it. However, he admitted he did not tell the woman he was HIV-positive. Gilbertson also told the judge he takes medications for the disease, which he claimed is barely detectable on tests, and said he has a full support team in the community looking out for his needs.

Judge Marilena Carminati appeared to have no sympathy for the man (nor a finer understanding of the impact of treatment on infectiousness – although perhaps a better lawyer would have helped), and as well as sentencing him to three years in prison ordered him to submit a DNA sample for the national DNA databank and, bizarrely, prohibited him from possessing weapons for life.

Meanwhile, a 32 year-old woman of Zimbabwean origin was arrested in Brampton, Ontario on August 10th for allegedly not disclosing that she was HIV-positive "with at least one sex partner on more than one occasion" during sex with a man who has since tested HIV-negative.

Details are sketchy, and oddly, the case only appears to have been reported on New Zimbabwe.com, a UK-based paper for the Zimbabwean diaspora. The report states that that woman "arrived in Canada from Indianapolis, United States, as a refugee in 2008" but doesn't say when she left Zimbabwe (or why).

The woman will face aggravated assault charges on September 13th at Toronto College Park courts and is currently out on "stringent bail conditions" that mean she is currently under house arrest.

Global: AIDS 2010 round-up part 2: Posters

2010-08-19T18:24:00.002+01:00

This selection of posters presented in Vienna follows up from my previous AIDS 2010 posting on the sessions, meetings and media reporting that took place during last month's XVIII International AIDS Conference. I'll be a highlighting a few others in later blog posts, but for now here's three posters that highlight how the law discriminates; why non-disclosure is problematic to criminalise; and how political advocacy can sometimes yield positive change.

In Who gets prosecuted? A review of HIV transmission and exposure cases in Austria, England, Sweden and Switzerland, (THPE1012) Robert James examines which people and which communicable diseases came to the attention of the criminal justice system in four European countries, and concludes: "Men were more likely than women to be prosecuted for HIV exposure or transmission under criminal laws in Sweden, Switzerland and the UK. The majority of cases in Austria involved the prosecution of female sex workers. Migrants from southern and west African countries were the first people prosecuted in Sweden and England but home nationals have now become the largest group prosecuted in both countries. Even in countries without HIV specific criminal laws, people with HIV have been prosecuted more often than people with more common contagious diseases." Download the pdf here.

In Responsibilities, Significant Risks and Legal Repercussions: Interviews with gay men as complex knowledge-exchange sites for scientific and legal information about HIV (THPE1015), Daniel Grace and Josephine MacIntosh from Canada interviewed 55 gay men, some of whom were living with HIV, to explore issues related to the criminalisation of non-disclosure, notably responsibilities, significant risks and legal repercussions. Their findings highlight why gay men believe that disclosure is both important and highly problematic. Download the pdf here.

In Decriminalisation of HIV transmission in Switzerland (THPE1017), Luciano Ruggia and Kurt Pärli of the Swiss National AIDS Commission (EKAF) – the Swiss statement people – describe how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law. A new Law on Epidemics removes Article 231, leaving only intentional transmission as a criminal offence, and will be deabted before the Swiss Parliament next year. Download the pdf here.

Canada: Gay man in Ottawa accused of HIV exposure charged with attempted murder faces further charges (update 2)

2010-08-18T09:33:00.002+01:00

Update: August 18 2010

The 29-year-old man gay accused of not disclosing his HIV-positive status to several men before otherwise consensual sex now faces 26 charges in Ottawa and further five charges in Kitchener according to the latest update from Canada's gay newspaper and online resource, Xtra.ca, which continues to report responsibly about the case by not disclosing the names of the accused, unlike the mainstream press.

According to court documents obtained by Xtra this week, the accused is now facing 26 charges: four counts of aggravated sexual assault, four counts attempt murder, five counts of sexual assault, eight counts of breaching probation, and one count of child pornography possession. He is also facing a total of five charges In Kitchener for similar offences, including three counts of aggravated sexual assault and two failure to comply with probation conditions.

A 24-year-old co-accused Kitchener man also accused of not disclosing his poz status is facing two charges of aggravated sexual assault. He and the Ottawa accused man allegedly had a foursome with two other men in Kitchener. He has been on house arrest since May. His next court appearance is scheduled August 24. The accused has a Kitchener bail hearing scheduled there via video link on Aug 27. He was arrested on May 6. By the time his next Ottawa Sept 9 court appearance happens, he will have spent more than four months behind bars.

Update: June 30 2010

The 29-year-old man gay accused of not disclosing his HIV-positive status to several men before otherwise consensual sex has had his charges upgraded to include attempted murder, according to a report in the Ottawa Citizen.

The four counts of attempted murder were laid against [name of man] in relation to four of his alleged victims. [The accused] has also been charged with four counts of administering a noxious substance — HIV — to the four men. It now brings the total number of charges against [the accused], who is still facing 14 charges of aggravated sexual assault as well as multiple counts of sexual assault and breach of probation, to 31. [The accused] also faces seven charges in Waterloo on similar accusations.
[He] was arrested in early May after an 18-year-old Ottawa man [allegedly] contracted HIV after the two had unprotected sex several times in January. A bail hearing for Boone, which began Tuesday, is expected to continue next week. The evidence presented during that hearing is subject to a publication ban.

This is the third person to face attempted murder charges in Canada since the murder trial of Johnson Aziga.

In related news, a few weeks ago, Xtra.ca ran an article explaining to HIV-positive, -negative, and untested gay men what the law in Canada actually means. In particular, it highlights that Canada's focus on non-disclosure is sending the wrong message: disclosure is "a lousy strategy for staying HIV-negative."

Only having sex with negative guys? Think again. “Is asking your partners if they have HIV before having bareback sex a good way to prevent HIV transmission? The answer is no,” says Murray Jose, executive director of PWA Toronto. There are two main reasons for this. Firstly, according to the Canadian AIDS Society, about 20,000 Canadians — or 30 percent of Canada’s HIV population — are HIV-positive and don’t know it. Secondly, while most poz guys are committed to ensuring HIV ends with them, it’s a difficult subject to broach, meaning many people — whether poz or neg — have trouble discussing it, especially in the heat of the moment.

Original post: May 11 2010

The good news from Canada didn't last long. Within hours of the not guilty verdict in Vancouver, another gay man from Ottawa was being vilified in the press following an inappropriate press release from the Ottawa police.

Excellent work is being done following the intricacies of the case by Noreen Fagan and Neil McKinnon reporting for Xtra.ca.

They highlight the concerns amongst gay and HIV-positive advocates in Canada, and quote a regular blog reader, Michael Burtch, who is also a friend of the accused.

“It’s a witch hunt is what it has turned into. It’s very frightening for a lot of people in the HIV community to see what’s happening,” says Burtch. “The feedback that I have been getting from talking to people is that they feel as though it could just as easily be them. So there is I think a very strong swelling of support for [him] from the HIV positive community who feel a lot of empathy for his situation.”

Burtch is critical of the way the accused has been portrayed by the police and the mainstream media.

“Basically he is being presented as guilty before he has even had a trial. And all the actions that the police have taken are really just continuing to dilute the public health messages that practicing safer sex is everyone’s responsibility. I think we are really going to see that this is going to have a negative effect on testing in the city and its definitely going to have and effect on stigma and fear, discrimination and prejudice that HIV positive people are already dealing with on a daily basis.”

“I think that the Ottawa Police, despite their best intentions, have done a real disservice to the HIV community. And I am disappointed in the police liaison committee, I wish that they could have done more for him.”

Kathleen Cummings, the director of the AIDS Committee of Ottawa, agrees. She says that, while people may forget a name, they're more apt to remember a face. "This is going to affect him for life," she says.

Michael had previously been in touch to ask my permission to link to my blog in the invites to his annual birthday party fund- and consciousness-raising event, which takes place on May 20th.

On Thursday, May 20th, I'm hosting my annual Birthday Celebration.The party is in its third year and is a Birthday Celebration for yours truly, which doubles as an appreciation party for all my supporters who have donated cash, time, or talent to my numerous extra curricular activates as an activist and as a fundraiser.

This year's event is tackling sexual stigma and prejudice, homophobia, sex workers rights, and protesting the criminalization of HIV transmission. It will feature the photography of Pat Croteau, who will be showcasing nudes of local community members to raise funds for P.O.W.E.R. – Prostitutes of Ottawa/Gatineau Work, Educate and Resist. (tinyurl.com/POWERottawa).

He added in his email last Friday, informing me of his friend's arrest

I'm heart broken, and we here in Ottawa are rallying around him. Looks like my Birthday poster has taken on a whole new sense of urgency around here.

I fully support Michael's efforts, and really feel for the entire HIV community in Canada. These are terrible times.