Austria: Matthew Weait guest blogs on recent mother-to-child transmission conviction of HIV denialist

The recent conviction of Austrian HIV denialist Barbara Seebald for:

1. rejecting taking the prescribed medicine during her pregnancy despite knowing of her HIV infection,
2. giving birth to her child naturally and at home with the help of a midwife who was not informed about her HIV infection despite the former arrangement with the doctors that the birth should be a Caesarean,
3. breastfeeding the newborn and
4. not giving medicine to her daughter

comes at critical time, just before the subject of the criminalisation of HIV exposure and transmission comes under the spotlight at the International AIDS Conference (AIDS 2010) held in Austria's capital Vienna.

Mrs Seebald - whose husband, Leonhard, had been charged as co-conspirator, but who died in May – was given a ten month suspended sentence, which she is currently appealing. Her case received the full UK tabloid treatment in The Sun last Tuesday.

Dr Matthew Weait, Reader in Socio-Legal Studies at Birkbeck College, London, author of Intimacy and Responsibility: The Criminalisation of HIV Transmission, and a member of the Technical Advisory Group of the recently-launched UNDP/UNAIDS Global Commission on HIV and the Law, has provided me with a thought-provoking analysis of the case that I'm posting in full below.

Denialism and Criminalisation

by Matthew Weait

The recent Seebald case in Austria raises a number of thorny questions for those opposed to the criminalisation of HIV exposure and transmission. These are my initial thoughts.

Why do we punish? Among the reasons are to make a moral example (a retributive justification), or to deter the defendant and others (an instrumental justification). If we subscribe to a retributive justification, then the defendant needs to be morally blameworthy – not just generally, but in respect of the particular conduct they have engaged in. Such blameworthiness will typically be because they intended the harm that was committed, because they took an unjustifiable risk, or because (more rarely) they were grossly negligent. As a matter of general principle, retribution requires moral fault on the part of the defendant, in the sense that they (not some hypothetical person) knew that they were at fault and were acting wrongly. If we subscribe to a more instrumental justification – and are more concerned with the effects of a person’s conduct than with their moral fault – we may be satisfied with a criminal law that takes an objective approach. In other words, would a reasonable person have done this? Would a reasonable person have been aware of the risk?

Someone who fails to take precautions against the onward transmission of HIV and / or who transmits HIV to another but who honestly believes that HIV does not cause AIDS, or who denies the relevance and / or meaning of HIV infection, cannot, according to a purely retributive approach, be legitimately punished. The honest belief negates their fault. Very few criminal law systems subscribe to such an approach, because there is always a social or public interest in harmful, or potentially harmful behaviour. More typically there needs to be a threshold moral fault, coupled with an objective (public interest) test.

The question raised by the Seebald case, then, is whether a person who honestly holds a denialist position may legitimately be punished where they infect another person with HIV, or expose them to the risk of HIV infection?

From a purely legal perspective, in the context of Austrian criminal law, the answer is yes. The Austrian penal code criminalises both intentional and negligent exposure and transmission. Put simply, its concern is not so much with the moral blameworthiness of the defendant as in the protection of the interests of others. There is however, a more general question as to whether the Austrian approach, and that of other countries which have similar laws, is justifiable.

My own answer is no, for the following reasons.

First, I believe that the criminalisation of non-intentional HIV transmission and exposure is unjustifiable on public health grounds, as well as being morally suspect. There is widespread international agreement on this point, the reasons articulated in a number of well-informed, thoughtful and coherently argued interventions. It follows that someone who honestly (even if misguidedly) denies the relationship between HIV and AIDS cannot legitimately be punished for onward transmission of HIV, unless one takes the view that such honest belief is to be ignored. And if we ignore it, then we fail to take seriously the reasons - whatever those might be – for denialism. These might be grounded in a person’s particular life story; or they might result from misinformation or misunderstanding. Whatever its cause, and however difficult it might be to understand that denialism or to sympathise with it, our incomprehension cannot be a sufficient justification for criminalisation and punishment. Put another way, a general opposition to criminalisation of non-intentional exposure and transmission cannot be displaced by conduct whose roots lie in ignorance. Doing otherwise effectively makes a failure to accept what most other people believe a sufficient justification for punishment, and that has a frighteningly totalitarian ring to it.

More generally, it seems to me that the criminalisation and punishment of a denialist – apart from the immediate impact on her or his personal and domestic life – displaces the more important issues (a) of systemic failures in HIV/AIDS education, and (b) of the effects of HIV-related stigma and prejudice. If we criminalise people who hold beliefs that the majority do not share, we risk reducing larger, structural, general problems to the level of the particular, the individual and exceptional. This will get us nowhere fast, and simply provides further opportunities for human interest-driven, and scandal-hungry media to demonise and reinforce negative images of people living with HIV.

We must resist the framing of events and episodes such as those represented by the Seebald case as a criminal law problem. If we do this, we necessarily imply that there is a criminal law solution – or, more strongly, that only a criminal law solution is needed. This is both wrong-headed and dangerous. The problem is far more complex, and requires a far more nuanced, sensitive and humane response – one that understands, acknowledges and addresses the reasons for a person’s denialism position rather than simply punishing them for it.

Uganda: 'Human rights will suffer' under new HIV/AIDS law (update)

Update: December 3rd

The United Nations Special Envoy on AIDS in Africa, Elizabeth Mataka – and NGOs that include the Uganda Network on Law, Ethics and HIV/Aids (Uganet) and ActionAID – have added to the many voices urging Uganda to reconsider its proposed HIV and AIDS Prevention and Control Bill.

The Daily Monitor reports that Ms Mataka told journalists in Kampala yesterday:

“I emphasise the importance of creating a bigger and social environment conducive for HIV prevention and to refrain from laws that criminalise the transmission of HIV and stigmatise certain groups in the population. These laws can only fuel the epidemic further and undermine an effective response to HIV."

Dorah Musinguzi, acting Executive Director of Uganet stated:

“We are cognisant of the fact that the draft Bill contains provisions that seek to address the HIV/AIDS pandemic but we need a law on the basis of which rights can be claimed and duties articulated in the context of HIV/AIDS. AIDS is no longer just a disease but a human rights issue. The law should be carefully crafted to find the right balance between promoting the public health while safeguarding and promoting human rights.

Original post: November 6th

A group of more than 50 Ugandan and international organizations and individuals have released a report criticising many of the provisions in the HIV and AIDS Prevention and Control Bill which is on its way to becoming law in Uganda.

A press release from Human Rights Watch (HRW) begins

The report criticizes repressive provisions in the legislation as contrary to the goal of universal access to HIV prevention, care, and treatment. The proposed law includes mandatory testing for HIV and forced disclosure of HIV status. It also criminalizes the willful transmission of HIV, the failure to "observe instructions on prevention and treatment," and misleading statements on preventing or controlling HIV.

Worryingly, the latest version of the bill, released a few days ago, has now a added provision criminalising attempted transmission, which "further opens the door for abusive prosecutions", HRW notes.

However "failure to inform one's sexual partners of HIV status is no longer criminalised" along with the rather interesting provision that would have criminalised "failure to take reasonable steps and precautions to protect oneself from HIV transmission."

Some might argue if criminalisation of HIV exposure or transmission remains in the Bill, why not allow for the prosecution of someone who does not protect oneself from HIV? That way, the law focuses on equal responsibility for HIV transmission/acquisition.

However, in a high prevalence country like Uganda (where an estimated 5.4% of the adult population is living with HIV) this would be unworkable, and would criminalise pretty much everyone who has unprotected sex, or at least is diagnosed HIV-positive - obviously a major backwards move, as this would remove any incentive for testing.

The HRW press release also focuses on the potential for criminalisation of HIV exposure and transmssion to disproportionately affect women, even though many lawmakers believe these laws protect them.

The report also highlighted how laws that criminalize HIV transmission can result in disproportionate prosecution of women because more women are tested as part of pre- or ante-natal medical care and therefore know their HIV status. Women's inability to safely negotiate condom use or disclosure to partners who might have been the source of their infection is not recognized in the bill as defenses against criminal penalties. Women who transmit HIV to their infants after birth via breast milk would also be subject to criminal prosecution, the report says.

"Women and girls have been disproportionately affected by HIV/AIDS," said Joseph Amon, health and human rights director at Human Rights Watch. "My fear is that mandatory testing and disclosure will lead to prosecution and violence instead of treatment and care."

Last month a Ugandan MP introduced a separate Anti-Homosexuality Bill that would impose the death penalty on HIV-positive gay men in Uganda if they have sex with another man.

The proposals have been roundly criticised by pretty much every human rights and HIV organisation in the world.

Global: Ten reasons why criminalisation of HIV exposure or transmission harms women

A new pamphlet released to coincide with World AIDS Day highlights why criminalisation is bad for women and girls, despite policymakers believing they are enacting new HIV-specific laws in order to protect them.

In addition to criminalizing the transmission of HIV, these laws sometimes call for mandatory HIV testing of pregnant women, as well as for non-consensual partner disclosure by healthcare providers; further exacerbating the impact of such legislation on women. The call to apply criminal law to HIV exposure and transmission is often driven by a well-intentioned wish to protect women, and to respond to serious concerns about the ongoing rapid spread of HIV in many countries, coupled with the perceived failure of existing HIV prevention efforts. While these concerns are legitimate and must be urgently addressed, closer analysis reveals that criminalization does not prevent new HIV transmissions or reduce women’s vulnerabilities to HIV. In fact, criminalization harms women, rather than assists them, while negatively impacting on both public health needs and human rights protections. Applying criminal law to HIV exposure is likely to heighten the risk of or transmission does nothing to violence and abuse women face; address the epidemic of gender-strengthen prevailing gendered based violence or the deep economic, inequalities in healthcare and family social, and political inequalities that settings; further promote fear and are at the root of women’s and girls’ stigma; increase women’s risks and disproportionate vulnerability to HIV.

It then details the ten reasons:

1. Women will be deterred from accessing HIV prevention, treatment, and care services, including HIV testing
2. Women are more likely to be blamed for HIV transmission
3. Women will be at greater risk of HIV-related violence and abuse
4. Criminalisation of HIV exposure or transmission does not protect women from coercion or violence
5. Women’s rights to make informed sexual and reproductive choices will be further compromised
6. Women are more likely to be prosecuted
7. Some women might be prosecuted for mother-to-child transmission
8. Women will be more vulnerable to HIV transmission
9. The most ‘vulnerable and marginalized’ women will be most affected
10. Human rights responses to HIV are most effective.

10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women was drafted by Dr. Johanna Kehler of the AIDS Legal Network, Michaela Clayton of the AIDS & Rights Alliance for Southern Africa, and Tyler Crone of the ATHENA Network.

You can download the pdf of the pamphlet here.

To endorse the document or for more information, please contact:
ATHENA Network: www.athenanetwork.org
AIDS Legal Network: www.aln.org.za
ARASA: www.arasa.info

Africa: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

I received an email last week from Miriam Mannak, a freelance writer based in Cape Town, South Africa who keeps on blog on AIDS in Africa. She recently contributed this excellent piece on the spectre of criminalisation on her continent to the Inter Press Service News Agency, whose mission is to give voices to the voiceless.

AFRICA: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

CAPE TOWN, Jul 30 (IPS) - In Sierra Leone, a mother who transmits HIV to her child can be fined, jailed for up to seven years, or both. Human Rights Watch reports that in 2008, several men were arrested in Egypt simply for being HIV positive. New legislation is currently being discussed in Angola that could lead to a three to ten year jail sentence for those who knowingly pass on HIV.

The legislation is inspired by a September 2004 workshop organised by the influential reproductive health organisation Family Health International developed an "African Model Law" intended to protect those who are infected and exposed to HIV.

But various civil society organisations fear that these legislative measures will hurt more than help the fight against HIV/AIDS.

Discourages testing, delays treatment

"If being HIV positive is being regarded as a crime, people will be less likely to get themselves tested," said Johanna Kehler, director of the Aids Legal Network (ALN) - a South African non-governmental organisation that aims to protect the human rights of people living with and affected by HIV/AIDS.

"This means that they are more likely to spread the disease unknowingly, and will not have access to antiretrovirals that may help to prolong their lives."

Jennifer Gatsi Mallet - coordinator of the Namibian branch of the International Community of Women Living with HIV/AIDS (ICW), a global network run for and by HIV positive women - agrees with Kehler’s statements.

"The criminalisation of HIV will be yet another reason why people will stay away from testing facilities and clinics," she said.

The International Planned Parenthood Federation, a global organisation that advocates sexual and reproductive health and rights, counts 58 countries around the world with laws in place to prosecute HIV transmission and 33 others that are considering passing such legislation. Of these, twenty are in Africa.

Women lose more

"Women will be the first ones in line to be prosecuted, as they are more likely to know their status compared to men, simply because they visit clinics more often, for instance during and after their pregnancy," Kehler explained.

Gatsi Mallet added that in "many parts of Africa, clinics and men are like water in fire. While some accuse health facilities of being unfriendly to men because most of the health care workers are female, others consider visiting as unmanly, especially when it comes to HIV and other sexual related transmitted diseases," she added.

"They therefore rather prefer to go to traditional healers, whom are in general more male orientated."

Because women are more likely to discover they are HIV positive, their male partners often blame them for bringing the virus home - regardless of the fact that the infection may well have travelled the other way.

"Women across the world, including in Africa, experience difficulties negotiating safe sex," Kehler said. "If a man does not want to use a condom, they often are left with no choice."

Angela from Cape Town, who requested anonymity - contracted the virus a few years ago. "I never had sex with anyone else but my husband, but I suspected that he was sleeping around. I just knew. So sometimes I asked him to use a condom, but he always blatantly refused," she explained.

"He said that a wife is supposed to trust her husband. When I went for prenatal care two years ago, I was told I was HIV-positive. After confronting my husband, he accused me of sleeping around and of infecting him. He threw me out of the house."

In countries like Egypt, such an accusation could lead to prosecution. The same is true in Togo, where HIV-positive people are prohibited by law from having unprotected sex, regardless of whether they have disclosed their status to their partner.

"In case of prosecution, women are left in a terribly vulnerable position, as many do not have the resources to, for instance, prove that they were HIV negative before intercourse," Kehler noted. "Neither can they prove if they did not do it deliberately."

Laws against mother to child transmission (MTCT) should also be banned, the ALN argues.

An HIV-positive mother can pass the virus to her child during pregnancy, whilst giving birth, or through breast feeding. Of the 370,000 cases of MTCT each year, about 90 percent occur in Africa, according to UNAIDS.

In countries like Guinea, Guinea-Bissau, Mali and Niger, a mother can be criminally charged if she does not take steps to prevent HIV transmission to baby, including taking antiretrovirals during the pregnancy.

MTCT is almost entirely preventable, by taking antiretrovirals and giving birth in a sterile environment. Breast feeding poses certain risks: WHO studies indicate that a mother who is HIV positive risks passing the virus on to her child. But in certain situations - for example where a mother does not have access to clean water to mix formula and sterilise bottles, but is on antiretrovirals - exclusive breastfeeding is recommended.

Formula-fed babies in developing countries are six times more likely to die from diseases like diarrhoea and respiratory infections than breast-fed babies, according to WHO.

"The problem is that many African women do not have access to proper health care facilities and cannot afford formula," Kehler said. "These are things governments should provide. If they fail, they should be the ones that are to be held accountable for MTCT."

SIDEBAR: Who's responsible for MTCT?

Chantelle Heunis* from Overcome Heights - an informal settlement near Cape Town - was infected by her now ex-husband with the disease in 1999. At the time she was pregnant with her second daughter.

"I only found out after my baby was three months old, after I went for a check-up as she was ill due to lactose intolerance. The nurse offered to test me for HIV - which was not a routine procedure back in the days. The results came back positive."

The next step was to test the baby. "It was dreadful, but thank god she was found HIV negative," Heunis said. "She is ten years old now, and as healthy as can be."

According to Heunis, it should not be allowed for women to be punished for MTCT. "I was lucky because I was in good hands, but many women do not have this privilege. They transmit the virus through unhygienic birthing practices, for instance, or because they do not have access to ARVs to prevent MTCT."

She also rejects the notion that HIV positive women should not be allowed to have children. "It is within our rights to have children. Besides, if a mother is HIV positive, that does not mean the baby is also."

* not her real name.

US: Florida woman guilty of mother-to-child HIV transmission

In what appears to be the first successful case of a criminal prosecution for mother-to-child transmission of HIV in the US (a Canadian woman was prosecuted under similar circumtances in 2006), a Florida woman has been sentenced to two years' probation after she pleaded guilty to felony child neglect.

She had faced up to 15 years in prison, but "prosecutors agreed to the deal because sending her to prison would significantly hinder her ability to care for him financially in the future."

I've included two articles from the Herald Tribune here: the first details her sentencing and the second, from January, goes into more detail of how and why she was arrested in the first place.

Mother who gave HIV to newborn gets probation
By Frank Gluck
Herald Tribune
Thursday, October 2, 2008

MANATEE COUNTY -- As part of a plea deal approved this afternoon, an HIV-positive mother will serve two years of probation for not taking medical steps to decrease her son's risk of getting the virus that causes AIDS.

Cecelia Sliker, 37, pleaded guilty to felony child neglect and had faced up to 15 years in prison. Instead, she will serve probation only. She must also find a job and is required to take health and parenting classes.

Investigators said Sliker did not get the boy, who was born in 2004, proper medical care because she did not want her son's father to know her HIV status.

Prosecutors agreed to the deal because sending her to prison would significantly hinder her ability to care for him financially in the future.

HIV can be transmitted from mother to child during pregnancy, delivery or after birth. Proper medication can prevent infection.

The boy eventually developed AIDS, authorities said earlier this year. His health now appears to be stable, witnesses told Judge Circuit Judge Debra Johnes Riva.

Officials: woman with HIV didn't seek care for baby
By MICHAEL A. SCARCELLA
Herald Tribune
Friday, January 11, 2008

BRADENTON -- Cecelia Ann Sliker knew she was HIV-positive before her son was born in 2001, and authorities say she followed the steps to block the transmission of the deadly virus.

Three years later, Sliker had another boy. But this time she ignored medical attention, fearing she would draw ire from the father, Manatee County sheriff's detectives say.

Authorities say Sliker did not get the boy care -- exposing him to risk -- because she was keeping her HIV status secret from her younger son's father.

Sliker's 3-year-old now has AIDS.

Sliker, 37, was arrested this month in Sarasota on a felony-level child neglect charge, a rare prosecution considering that the number of pediatric HIV and AIDS cases has fallen considerably across the country since the beginning of the epidemic.

"As far as I'm concerned this is total neglect and irresponsibility," said Richard Trifari, community health director at the Michael C. Bach Treatment Center in Bradenton. "This is mind-boggling. There is no excuse for this."

Authorities and AIDS experts said Thursday that medical attention before birth and after would have considerably reduced the chance of transmission and possibly eliminated it entirely.

The support network for HIV-infected pregnant women is widespread, and the medicine is free, Trifari said.

Sheriff's officials declined Thursday to address specific details of the investigation because the case is open. Also, federal laws protect patient privacy and make medical records confidential.

Whether Sliker's doctors were aware she was HIV-infected in 2004 was not immediately known Thursday.

Children Medical Services, a division of the state health department, documents HIV-infected pregnant mothers and provides care for children with special health needs.

But physicians cannot force a pregnant woman to take an HIV test, according to several experts in AIDS prevention.

Sliker, a New Jersey native who has lived in Sarasota and in Bradenton in recent years, was booked Wednesday at the Manatee County Jail with bail set at $25,000. She could not be reached for comment.

The Manatee County Sheriff's Office child protective service unit began a child neglect case in April, according to charging documents released Thursday.

But it was not immediately clear how protective services got involved -- whether, for instance, a relative or friend anonymously phoned in a complaint.

A Manatee County sheriff's deputy who was called out to Sliker's house in Bradenton said the younger boy appeared in good health. His room was clean. There was food in the refrigerator. He said the boy had a cough and that his mother gave him cough medicine.

The boy's uncle told the deputy he believed his nephew had been tested for HIV and that he did not have the virus. The uncle said he had never seen Sliker give the boy any medicine other than over-the-counter medicine for colds.

Sheriff's reports did not say when Sliker found out she was HIV-positive. But a detective said Sliker knew she before the birth of her first son in 2001.

Authorities said Sliker followed up with proper care after that pregnancy -- medication and doctor's appointments -- and the boy did not develop the virus.

HIV can be passed on from mother to child during pregnancy, delivery or afterbirth -- during breast-feeding, for instance.

Early intervention is critical in reducing the risk of transmitting the virus. Without the medication, a newborn has a 30 percent chance of contracting HIV.

The number of AIDS cases attributed to mother-to-child transmission has decreased dramatically in recent years, from 118 reported cases in 2001 to 67 in 2005, according to the federal Centers for Disease Control and Prevention in Atlanta.

In Manatee County, only a couple of cases have been reported in recent years, said Trifari of the Michael Bach Center, an HIV/AIDS patient care center in Bradenton.

Most HIV-infected women know they are carrying the virus that causes AIDS before giving birth, according to the CDC.

"Most of them get great prenatal care," said Susan Terry, director of the Community AIDS Network in Sarasota said.

She called the transmission of HIV "extremely preventable."

In the United States, about 100 to 200 infants are infected with HIV annually, according to the CDC. Women who were not tested early enough during pregnancy or who did not participate in prevention services make up the bulk of the cases.

"Why wouldn't someone want to make sure they were doing everything possible?" said Maj. Connie Shingledecker of the Manatee County Sheriff's Office.

Shingledecker, a longtime child welfare advocate, said mothers should be told early on that criminal charges are possible if appropriate care is not provided.