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

Norwegian Law Commission member, Kim Fangen.

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

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

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

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

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

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

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

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

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

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

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

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

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

Q: What disappoints you the most about the report?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New time. New inspiration.

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

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

Does HIV belong in the criminal code?

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

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

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

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

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

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

Decriminalisation

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

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

People with HIV - an untapped resource

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

Common goals

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

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

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

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

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

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

National Action Plan

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

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

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

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

The way forward - a new tool offers new opportunities

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

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

Norway: Long awaited Law Commission report disappoints

The long-awaited report from the Norwegian Law Commission, released last Friday, has shocked and disappointed HIV and human rights advocates in Norway and around the world.

After spending almost two years examining every aspect of the use of the criminal law to punish and regulate people with communicable diseases (with a specific focus on HIV) the Commission has recommended that Norway continues to essentially criminalise all unprotected sex by people living with HIV regardless of the actual risk of HIV exposure and regardless of whether or not there was intent to harm.  The only defence written into the new draft law is for the HIV-negative partner to give full and informed consent to unprotected sex that is witnessed by a healthcare professional.

As highlighted in this news story from NAM, low or undetectable viral load will provide no defence to "exposure" charges (although the Commission has recommended that it may be a mitigating fact during sentencing). However, in contrast to the recent Supreme Court of Canada ruling, condoms alone will continue to suffice as a defence.

Given the importance of this report – and its many internal inconsistencies that result in a recommendation for a new law that will actually make it easier to prosecute people with HIV for low- (or no-) risk sex, such as the current oral sex prosecution of Louis Gay  –  I will be writing a series of stories examining different aspects.  In the coming days, there will detailed analysis of the Commissions' report from Professor Matthew Weait as well as an interview with the dissenting Commission member, Kim Fangen.

Health and Care Services Minister, Jonas Gahr Støre, is presented with the report from Law Commission chair, Professor Aslak Syse on Friday 19th October 2012. (Source: Norwegian Ministry of Health and Care Services)

Background

Since the first prosecution in 1995, Norway has been using a 110 year-old law to prosecute potential or perceived HIV exposure or HIV transmission, which has the the primary aim of protecting public health.

With the exception of one prosecution each for hepatitis B and hepatitis C transmission, the law has only been used in relation to HIV, and so consequently, paragraph 155 of the Norwegian Penal Code is usually referred to as 'the HIV paragraph'. There is no consent nor 'safer sex' defence in this law, which essentially criminalises all sex by people with HIV. 

A new penal code was adopted in 2005 that added a consent defence for "spouses" or other couples living together on a steady basis –  and the discussion text further noted that condom use should also be a defence.  However, this has not been enacted due to its being roundly criticised by many HIV and human rights groups in Norway and beyond - including by South African Constitutional Court Justice, Edwin Cameron – as being overly draconian and hypocritical given Norway's role as an arbiter and defender of international human rights. 

Consequently, in December 2010, the Norwegian Government appointed a law commission on penal code and communicable diseases to assess whether or not a criminal law was necessary, and if so, what should be criminalised. The Commission consisted of 12 members, including medical and legal practitioners, scientists and academics with backgrounds in sexuality, ethics and human rights, as well as one HIV activist, Kim Fangen. 

Kim spoke about the work of Commission – and its potential impact – at the recent international conference on the criminalisation of HIV non-disclosure, potential or perceived HIV exposure and non-intentional HIV transmission that took place in Berlin. The meeting was co-organised by the European AIDS-Treatment Group (EATG), Deutsche AIDS-Hilfe (DAH), the International Planned Parenthood Federation (IPPF), and HIV in Europe.



At the meeting, Kim noted: "It surprised the Commission and many others that people are still being prosecuted under this paragraph [155] when another paragraph was adopted...in 2005. The usual practice in Norway [and elsewhere] is to take into consideration the revised and adopted paragraph even if it's not yet in force."

The Commission met twelve times for up to three days at a time, and consulted with national and international experts on HIV and the law along with government representatives, health organisations, and people living with HIV. Some Commission members also participated in the UNAIDS expert meeting on HIV and the criminal law in Geneva, in August/September 2011, as well as the the high level international consultation on HIV and the criminal law held in Oslo in February 2012, which coincided with the Oslo Declaration meeting where two Commission members were present.

In other words, the Commission had every possible opportunity to come up with a report that would result in Norway leading the world in terms of a rational, proportionate, ethical and just response that balances public health with human rights.  Instead – with the exception of Kim Fangen – they opted for the most conservative outcome possible, that appears to ignore much of the legal and scientific expertise presented to it, in favour of a law that they believe will act as a deterrent to risky sex and normalise the long-standing Norwegian traditional of promoting monogamous sexual relationships for procreation.

The report

The Norwegian Committee report, entitled 'Of love and cooling towers' (to reflect the report's lesser focus on environmental health issues as well as on HIV and other communicable diseases) can be viewed or download here.  Click here to read the substantial English summary online.

As expected, the report is long and detailed, and covers many aspects of regulating issues that have an impact on the public health.  A substantial English-language summary is available. I have reproduced a summary (of summaries) of the Commission's recommendations as they relate to HIV (and ostensibly other sexually transmitted infections) below.

The members of the Commission have divided opinions on whether the person-to-person transmission of infection should be covered by a special penal provision as is the case at present (section 155 of the 1902 Penal Code). One member proposes that this penal provision be repealed and that no new provision be added to the 2005 Penal Code, and that the provision already adopted in the 2005 Penal Code not enter into force.

The 11 other members find it clearly most appropriate to have a separate penal provision on direct and indirect person-to-person transmission of serious communicable diseases, including through sexual intercourse. This is proposed in the draft of section 237 on transmission of infection in the 2005 Penal Code. A separate provision of this nature makes it possible to introduce, in the text of the statute, impunity in cases where responsible behaviour has been displayed in terms of communicable disease control, and to establish rules for when consent will exempt a person from criminal liability. It is proposed that the threat of criminal prosecution should target the act of transmitting a communicable disease that causes significant harm to body or health, as well as blameworthy conduct that results in exposure of another person to the risk of being infected with such a disease.

Of these 11 members, a minority of two is in favour of a penalty only being applicable when infection is transmitted. The other nine members are of the opinion that the act of exposing another person to the risk of infection should also be punishable when the behaviour in question is blameworthy («on repeated occasions or through reckless behaviour») from the perspective of communicable disease control. This is also warranted for evidentiary reasons.

It is proposed that the threat of criminal sanctions for direct and indirect person-to-person transmission of infection should only apply to intentional and grossly negligent acts, contrary to section 155 of the 1902 Penal Code and section 237 of the 2005 Penal Code, which also cover simple negligence. The draft statute states that no penalty is applicable when proper infection control measures (such as use of a condom in connection with sexual intercourse) have been observed. Nor is a penalty applicable in the case of transmission of infection in connection with sexual activity when the person who has been infected or exposed to the risk of infection has given prior consent in the presence of health care personnel in connection with infection control counselling.

The special comments to the draft statute point out that the prosecuting authority should show restraint in cases of infection transmitted from mother to child, in connection with the use of shared injection equipment among drug users, in connection with sex work and between two infected persons, particularly when both of them are aware of their own and their partner’s infection status.

The proposal entails a certain decriminalisation and reduced criminalisation in relation to the current section 155, and a clarification of when penalties are not applicable. It is proposed that the penalty level be reduced somewhat. The current maximum penalty (six years’ imprisonment) is only to be maintained for aggravated transmission of infection, which will primarily apply in cases where the transmission of infection has caused loss of life, the infection was transmitted to two or more persons, or transmitted as a result of "particularly reckless behaviour".

What next?

The report's recommendations are just that – recommendations – and the final outcome may be very different.  The process will take a further 18 months, and won't be finalised until  2014.

In the coming months, the Ministry of Health and Care Services will, together with the Ministry of Justice and Public Security, thoroughly examine the report and recommendations which is classified as an ONR - Official Norwegian Report.

They will then produce an open hearing letter which will allow for further comment.

All the comments and any additional recommendations will then be taken into consideration before the two Ministries send their final recommendation to the Norwegian Parliament.

It is entirely possible that the Government may ignore these recommendations completely. 

The Google-translated headline of the Norwegian-language Aftenposten story of July 24 2012 highlighting that two promiment MPs do not want any law that would criminalise potential or perceived HIV exposure or transmission.

In July, two prominent and influential MPs, Håkon Haugli (Labour) and Bent Høie (Conservative) came out in favour of no replacement for Paragraph 155.

If both parties support their positions, there would be a firm majority in Parliament to ignore the Commission's recommendation and, instead, to repeal article 155 (and its 2005 replacements) and pass no new law at all.  

As the experience of its Nordic neighbour, Denmark, has shown, the sky does not fall in – risky sex and new infections do not increase – when there is no law governing the behaviour of people with HIV, because, as numerous studies have found, the vast majority of people living with HIV are responsible; their behaviour is not influenced by criminal law; and most new infections emanate from undiagnosed HIV. 

Norway: First gay man to be prosecuted goes public, makes a real difference (corrected)

Correction: Louis Gay tells me that he is not the first gay man to be prosecuted in Norway.

I am the first one to be prosecuted for practicing "safer sex" (oral sex, only. with no condom and no contact with sperm or precum), without transmitting any virus!

Original post: Yesterday, Bent Høie (Conservative), the leader of the Standing Committee on Health and Care Services, raised the issue of HIV in the Norwegian Parliament (Stortinget). He was concerned about the rise in new diagnoses in the country, and discussed increases in unprotected sex amongst gay men and other men who have sex with men, as well as lack of knowledge of HIV and HIV-related stigma within broader Norwegian society.

Notably, he linked these concerns with Section 155 of the Norwegian Penal Code. This infectious disease law enacted in 1902 is known as the ‘HIV paragraph’ since it has only ever been used to prosecute sexual HIV exposure or transmission. By placing the burden on HIV-positive individuals to both disclose HIV status and insist on condom use, the law essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status, and consents. There is no distinction between penalties for HIV exposure or transmission. 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.

The law is currently in the process of being revised by the so-called Syse-committee (named after its chair, Professor Syse but officially titled The Norwegian Law Commission on penal code and communicable diseases hazardous to public health), but at the moment, the current law stands.  At least seventeen individuals have been prosecuted since 1999 – and until this year all prosecutions were as a result of heterosexual sex despite the fact that most HIV transmission in Norway is the result of sex between men.

Earlier this year, Norwegian prosecutors decided to prosecute the first gay man under this draconian law. Although transmission had been alleged, phylogenetic analysis ruled out Louis Gay's virus as the source of the complainant's infection. Still, he is being prosecuted for placing another person at risk despite the only possible risk being unprotected oral sex, and despite Louis disclosing his HIV-positive status prior to any sex (which the complainant denies).

Louis decided to go public in November 2011 during the initial police investigation. Since then he has given interviews to some of the largest circulation newspapers and magazine in Norway, as well as to national TV and radio. I had the pleasure of meeting Louis in Oslo in February when he addressed the civil society caucus that produced the Oslo Declaration.

As well as his own blog, Louis now also blogs about his experience for POZ.com.  In his second post he notes that

I chose to go public before any final decision was made from the State attorney office, with the chance of provoking them to prosecute me because they don't want to risk being criticized by media of giving in to pressure. This is fine with me.  Like I've stated before I want to have my case tried before a court. Anyway! Now we all have to wait until the trial before we get any further answers about my case. In the meantime the discussion whether we should have a law like this (and using it like in my case) is protecting the society from more infections or just making it worse, continues. 

 So, yesterday, Louis's brave stand paid off.  Conservitive MP Bent Høie, the leader of the Standing Committee on Health and Care Services, mentioned Louis' case in Stortinget.

Then it is a paradox that the social-liberal Norway still has an HIV-paragraph that is criminalizing HIV-positive people's sexuality. This has now been brought to a head by the public prosecutor who has brought charges against HIV-positive Louis Gay, who has not infected any other person and who conducted what we call "safer sex", which in reality is the health authorities' recommendations. I am aware that Syse-committee is now working on this issue, but it is still necessary to highlight this in this debate, because current criminal law works against prevention strategy and stigmatize HIV-positive people. I hope that today's debate could be the start of that we again have a strong political commitment to reducing new infections of HIV and to improve the lives of those who are HIV-positive - which in reality are two sides of the same coin."
(Unofficial translation by Louis Gay)

I'm so impressed with Louis's courage and determination, and I think that he actually might just be making a difference by going public.  If you support Louis, let him know by leaving a comment here, or on his own blog, or at POZ.com.

Norway: Prof. Matthew Weait delivers stirring clarion call to recognise harm of HIV criminalisation

Yesterday Professor Matthew Weait, Professor of Law and Policy at Birkbeck College, University of London delivered a stirring lecture to the public health professionals involved in implementing Norway's HIV strategy.  As Norway is currently reconsidering its criminal code as it relates to HIV and other infectious diseases, 'Criminalisation and Effective HIV Response' was a clear clarion call to "recognise that HIV is not a legal problem capable of a legal solution, but a public health issue to be dealt with as such."

What I would urge you to recognise is that the appeals for change are being made not only by people living with HIV and the civil society organisations advocating on their behalf, but increasingly by health professionals, virologists, epidemiologists and others who have come to recognise that punitive responses to HIV are counter-productive and damaging in efforts to respond effectively to the spread of the virus. This is a critically important point, and their voice needs to be heard.

With Matthew's permission, I am publishing the entire lecture below.  You can also download the full text (with full detailed footnotes and references) from Matthew's blog.

Courtesy of Charlotte Nördstrom

As a country which many in the world look to for progressive policy-making grounded in evidence and human rights principles, Norway’s response to HIV is not simply a matter of national importance, but is of significance both to the developing countries to which it provides economic and other assistance in the fight against endemic HIV, and to high-income countries whose epidemics are similarly limited and concentrated in particular population groups.

Your current national strategy – Acceptance and Coping – states as follows:

The comprehensive aim of this strategy is that at the end of the strategy period, Norway will be a society that accepts and copes with HIV in a way that both limits new infection and gives persons living with HIV good conditions for social inclusion in all phases of their lives.

The strategy document sets out a number of specific goals, each of which discusses measures that will be taken in order to deliver on the strategy. My focus today is on the way criminalisation of HIV transmission and exposure might impact on that strategy. I will start, though, with some background and context.
 
1. International Thinking and National Law

At the 26th special session of the UN General Assembly in 2001, States party to the International Covenant on Economic, Social and Cultural rights (including Norway) declared their commitment to

... enact, strengthen or enforce, as appropriate, legislation, regulations and other measures to eliminate all forms of discrimination against and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS and members of vulnerable groups …

This commitment is yet to be realised. Since the beginning of the epidemic new and existing legislative measures have been introduced and enforced that impede rather than further the central goal of reducing onward transmission of HIV, of minimising the spread of the epidemic, and protecting the rights of PLHIV and those most at risk of infection.

In a 2010 Report, the UN Special Rapporteur on the Right to Health referred to this commitment in the context of the criminalisation of HIV transmission and exposure. Drawing on the best available evidence he emphasised that criminalisation has not been shown to limit the spread of HIV, that it undermines public health efforts and has a disproportionate impact on vulnerable communities.

Drawing on the UNAIDS International Guidelines on HIV/AIDS and Human Rights and more recent UNAIDS/UNDP policy, he reiterated that the criminal law should only be deployed in very limited circumstances. In particular, people should not be prosecuted where there is no significant risk of transmission, where they are unaware of their HIV positive status, do not understand how HIV is transmitted, have disclosed their status (or honestly believe their partner to know it), failed to disclose because of a fear of violence or other serious negative consequences, took reasonable precautions against transmission, or have agreed on a level of mutually acceptable risk.

Norway, in common with most other countries, falls significantly short of the UNAIDS guidance and of the Special Rapporteur’s recommendations. Its current criminal law imposes liability irrespective of a person’s viral load, those who transmit HIV non-intentionally, and on those who merely expose others to the risk of infection. Also, and more exceptionally, it allows for the criminalisation and punishment of those who engage in unprotected sex, even when they have disclosed their HIV positive status to their partner and where the partner has consented to the risk of transmission. Although its penal code allows for the criminalisation of other serious diseases, almost all cases that have been brought to the courts have concerned HIV – and so although it is not an HIV-specific law in theory, the practice is very different.

2. The Enforcement of Law
This use of the criminal law has placed Norway – along with its Scandinavian and Nordic neighbours, at the top of the leader board of HIV criminalisation in Europe, and very high globally. When we look at rate of convictions per 1000 PLHIV in the European region, we see a higher rate of conviction in northern European countries, especially those in Nordic and Scandinavian countries.

This variation in intensity of criminalization as measured by convictions seems strange at first glance, especially when you contrast it with the HIV prevalence estimates.

It is especially notable that the bottom three countries with respect to criminalisation (Italy, France, UK) have – conversely – the highest numbers of people living with HIV, and (in general) higher than average prevalence.

What, then, might be explanations for this? We have to be cautious, given the non-systematic nature of the data collection; but I do think that we can begin to understand the pattern if we think about some of the social, cultural and historical differences between countries in the region.

So, for example, we can see that the top five criminalising countries in the region all have laws which impose liability for the reckless or negligent exposure (and thus have a wider potential scope for criminalisation). We can also see that these same countries all have high confidence in their judicial systems (which may go some way towards accounting for a person’s willingness to prosecute after a diagnosis, believing that their complaint will be dealt with efficiently and fairly). Even more interestingly, I think, are the correlations that we see when we look at variations in interpersonal trust, as measured by the World Values Survey.

Here we can see the top five countries in the region with respect to interpersonal trust (and the only countries where the majority of respondents trusted other people), are all in the top half of criminalizing countries, with rates of conviction in excess of 1 / 1000 PLHIV.

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 and Nordic 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 your own and Sweden) 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.

3. Impact of Criminalisation on PLHIV and Most at Risk Populations

What is the impact of criminalisation?

This is a difficult question to answer, because it depends on what we mean by impact. First, there is the impact on the individual people who have been, and continue to be, prosecuted – people who have been investigated, convicted, jailed and publicly shamed, sometimes simply for having put others at risk, sometimes for transmitting HIV unintentionally, sometimes when they have been completely open about their status with a partner in a relationship which subsequently breaks down. For these people, being HIV positive and failing to live up to the exacting standards the law in this country, and others in this region, demands of them has turned them into criminals with all the social and economic disadvantages that entails. Here we could think specifically of your own fellow country man Louis, who had a charge of transmission dropped when it transpired that he was not the source of his partner’s infection, but is still being prosecuted for exposure.

Second, and critically, there is the impact on public attitudes towards, and responsibility as regards HIV, PLHIV and sexual health generally. Here I am not talking just about the individual experience of the two Thai women in Bergen who stopped in a bar for a drink after shopping and, in front of other customers, were thrown out by the owner because of a recent case in the town involving a Thai sex worker (from that point on, being Thai themselves (though legally in the country and married to Norwegian men) made them guilty, positive and dangerous simply by association). I am talking more of the broader impact that such an example illustrates.

Criminalisation, because it places responsibility for transmission risk on people with diagnosed HIV, serves to reinforce the idea that responsibility for one’s own sexual health belongs with those people. The existence of criminal law provides people who have consciously taken risks with an official mechanism for declaring their victim status. It provides grown, adult, men who have unprotected sex with migrant sex workers an opportunity to deny any responsibility they might have for actually taking responsibility themselves. It provides people (in Norway) who in fact consent to sex with a person who has disclosed his or her positive status the opportunity to take revenge if the relationship breaks down. If we can blame someone else for misfortune, or for being in situations where there is a risk of harm, it is only natural that some of us will; and the sensationalist media coverage (as bad here as it is anywhere in the world) merely serves to confirm this and to sustain the ignorance which the FAFO study highlighted. The headlines are, as you well know, always in the form “HIV-man (or woman) exposes x number of women (or men) to HIV.” They are never in the form “X number of people put themselves at risk by having unprotected sex”.

Finally, I would just like to mention Maria (not her real name) who I interviewed here in Oslo in March 2012. For her, a mother of two children who was contacted by the police about the arrest of a man she had had a sexual relationship with (but who was not in fact the source of her HIV infection) the trial in which she was made to be a complainant has resulted in her being so afraid of legal repercussions that she has not had sex for eighteen months. For Maria, and people like her, a guilty verdict does not necessarily result in closure, and it does not result in a reversal of sero-status. It simply creates another potential criminal who better beware. If, as Acceptance and Coping states, Norway is serious about reducing the number of new infections, enabling people to feel secure in testing and in discussing their positive status more openly, it must recognise that criminalisation of the kind that exists in this country does nothing to assist in those endeavours.

4. Barriers to Change

What, then, are the barriers to change? I ask this question recognising that the Commission led by Professor Aslak Syse has yet to report on its findings and make recommendations, and here I will mention only two.

The first thing I would say here is that here are many in the Scandinavian and Nordic region who are calling for a change in the law. However, there has been, and continues to be, among politicians and policy makers – as well as among some public health professionals – a scepticism about calls to decriminalise non-deliberate HIV transmission and exposure.

Take politicians first. Their scepticism stems, I think, from a belief that arguments in favour of decriminalisation when made by advocacy organisations are – in effect – arguments for being allowed to practise unsafe sex with impunity: without consequence. If a gay man living with HIV argues that he should not be punished if he has unprotected sex, or does not disclose his status to a partner, or happens to transmit HIV during consensual sex (even when this is the last thing he wishes to do) it is very easy to hear that as someone claiming a right to be irresponsible. Put simply, the fact that at a national level in this region the decriminalisation advocacy work has been pursued largely – though not entirely – by civil society organisations has resulted in a less than sympathetic response from those in a position to deliver change – especially those elected politicians whose principal concern is their immediate electorate and public opinion more generally. Nor, for a long time, has the medical profession been entirely supportive. For doctors, especially those in official public health positions at national and regional level, it has been problematic to support those who seem to wish to challenge their role in protecting the health of society generally. For health professionals, arguments for repealing the coercive powers given to them under communicable disease legislation, or of the criminal law that provides the final sanction against those who do not comply with regulations, are easily read as arguments for allowing people with HIV the right to undermine the very thing it is their responsibility to achieve: as a right to put healthy people at risk of disease and illness.

Faced with the way in which their arguments have been interpreted by those with political power, it is small wonder that those appealing for change have met with limited success, despite arguments consistent with those of expert international organisations (such as UNAIDS). What I would urge you to recognise is that the appeals for change are being made not only by people living with HIV and the civil society organisations advocating on their behalf, but increasingly by health professionals, virologists, epidemiologists and others who have come to recognise that punitive responses to HIV are counter-productive and damaging in efforts to respond effectively to the spread of the virus. This is a critically important point, and their voice needs to be heard.

The second factor that sustains the legitimacy of punitive laws in a country, and makes their reform difficult, is the nature of the epidemic in that country. Like other Nordic countries, Norway’s HIV epidemic is localised both socially and geographically. It is predominantly an urban disease affecting MSM and migrants from high-prevalence regions in Africa and Asia. Recognition of this has led to targeted prevention strategies, which is of course welcome; but it has also contributed to the ignorance about HIV among the general population (as shown by the FAFO study), and – critically, I think – to a perception that HIV is, and remains, someone else’s problem. Epidemiologically this may be correct. HIV does not, in general, impact directly on the lives of the vast majority of Norwegians. Few will know someone living with HIV, and even fewer someone who is open about his or her positive status. A consequence of this is that measures which would be seen as gross infringements of civil liberties and personal freedom if applied to the general population are seen as a reasonable and legitimate response. It is as if HIV were a snake that has found its way into a party full of animal rights activists. They cannot simply kill it (that would be wrong, and there are some limits to how one may reasonably respond to phobias) but it is justifiable to take any containment measures necessary to stop it getting any closer.

If you doubt this, consider the following two questions. First, we know that a significant number of new transmissions of HIV are from those who are newly infected and undiagnosed. If the criminal law on exposure and transmission were logical, should it not be applied to all those who have unprotected sex with a partner, who have had unprotected sex in the past, and who do not have a recent negative test result? And if we think non-disclosure is a justification for criminal liability, should we not criminalise all those who fail to disclose the fact that they have had unprotected sex in the past and are uncertain of their HIV status? Being HIV positive is not the relevant risk: infectiousness is.

Why don’t we do that when it is the logical approach? Because such rules would apply to the vast majority of adults in Norway, not merely to a containable and definable sub-section of those adults. And even those who might respond to this proposition by pointing out that undiagnosed HIV is far more common among MSM and migrants would have a hard time justifying criminalising all unprotected homosexual (but not heterosexual) sexual activity, and the unprotected sexual activity of migrant people from high-prevalence regions with native Norwegians. This would be seen, I suspect, as a grossly discriminatory and offensive approach – despite the fact that it makes far more sense than the one that you have here.

As to the second question, consider this. Norway, in common with its neighbours, has a strong tradition of overseas aid, and an official, publicised commitment to providing assistance to developing countries in their fight against HIV and AIDS. Indeed, the Government of Norway has publicly stated that it “ … wishes to focus on how legislation and public services can do more to reduce vulnerability and increase dignity and better cooperation into the fight against AIDS”.

The question therefore is: should Norway encourage the high-prevalence countries to which it provides support to adopt its legal model their HIV response? Put simply, do you think it would be appropriate to criminalise HIV transmission, exposure and non-disclosure where it is endemic? My guess is that your answer to that would be no. But if the answer is no, you must ask yourselves – as matter of fundamental ethics – why not? Why is it appropriate to respond punitively to PLHIV living in Norway when to do so in Botswana, or Malawi, or Swaziland would be wrong?

It seems to me that the answer to this question, even if it is a difficult and uncomfortable one to acknowledge, is that for as long as HIV only affects a small and definable minority punishment is defensible. As long it is “over there”, among the gays and the migrants and the IDUs, and for as long as coercive powers will not impact on the vast majority of the population, criminalisation is something that can be legitimated and politically defended without fear of popular protest. If this is correct, it is particularly offensive and pernicious. Exposure is exposure wherever it takes place in the world; transmission is transmission; HIV is HIV; disclosure is either to be required as a matter of principle, or not. If criminalisation is not something that one country would countenance for human beings in countries in which HIV continues to be a real and immanent threat, and – critically – human beings for whom HIV infection is far less easy to manage, and still results in significant mortality, then on what possible principled basis is it justifiable to use the criminal law against those in one’s own country, where HIV is a manageable condition and where the quality of life for diagnosed PLHIV is as high as it possibly could be? If there is any substance to the claim that the legal response to PLHIV in Norway is discriminatory – which many of its critics suggest – that substance finds its expression here.

5. Final Observations

Norway is placed better than any other nation at the present moment to reform its law so that it complies with UNAIDS recommendations. The work of the Law Commission, which will report in the autumn of 2012, has been more focused and comprehensive than any other initiative I know of. Its report will, I have no doubt, present arguments both for and against the present law, and those arguments will be supported by the best available evidence. Ultimately, though, legal reform is in the hands of politicians, and their concerns extend beyond the logic of prevention. What those politicians need is the support of those who work in the field, at the sharp end of HIV prevention, diagnosis and treatment. Without that, it will be all too easy to adopt minimal reforms that do not go to the heart of the matter, or to kick the report into the long grass and carry on as before. It is not for me to tell you what your law should be. All I can do is urge you to read the Oslo Declaration, published here just recently, and to watch the video accompanying that. All I can do is encourage you to recognise that the authors of the HIV Manifesto, a radical initiative demanding the repeal of paragraph 155 of the Penal Code, was not written by people who simply want to have sex without consequences but by intelligent, rational and thoughtful people. All I can ask you to do is to recognise that HIV is not a legal problem capable of a legal solution, but a public health issue to be dealt with as such. All I can suggest is that in thinking about this complex topic you ask yourself the following simple questions.

Does criminalising non-deliberate HIV transmission and exposure assist you in your prevention work?

Does it contribute to increasing accurate and helpful knowledge and understanding about HIV and to the de-stigmatisation of people living with the virus?

And does criminalisation make achieving the aims set out in Acceptance and Coping easier to achieve?

If the answer to any or all of these questions is no, then the arguments for HIV criminalisation of the kind and intensity that currently exist in this country are not, I would suggest, as strong as those against.

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

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:

1. what their motivations for legal reform have been;
2. how they have organised nationally and regionally to try and achieve that reform;
3. how they have developed their policy agendas
5. 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;
6. how they have engaged with policy makers, politicians, and government;
7. the political, institutional and other barriers to reform; and
8. 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.

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

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.

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

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:

1. HIV-related prosecutions negate public health mutual responsibility messages
2. HIV-related prosecutions fail to fully consider the intersection of risk and harm
3. HIV-related prosecutions ignore the reality that failure to disclose HIVstatus is not extraordinary
4. HIV-related prosecutions reduce trust in healthcare practitioners
5. HIV-related prosecutions increase stigma against people living with HIV
6. HIV-related prosecutions are unacceptably arbitrary
7. HIV-related prosecutions do not decrease HIV transmission risks
8. 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.