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.

US: Public health experts and politicians support advocacy to modernise Iowa's HIV law

Activism to modernise the unscientific, unjust and stigmatising HIV-specific criminal statute in Iowa is heating up.  Last month, the Iowa HIV Community Planning Group voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalisation statute.

Next Monday, October 15th in the state capital, Des Moines, there will be another of a series of planned CHAIN/Sero Project community forums highlighting these efforts. All Iowa legislators within a 30 mile radius of Des Moines have been invited and Iowa Senator Matt McCoy (Democrat), who earlier this year introduced a bill to repeal and modernise the law, will be in attendance.  Although the bill didn't make it out of subcommittee, he plans to reintroduce another in the legislative session that begins in January.

HIV is not a crime: Monday 15 Oct, 6:30pm at the First Unitarian Church of Des Moines,1800 Bell Ave, Des Moines, Iowa.

Globegazzette.com covered the last community forum, held in Mason City in September, in their story, 'Groups call for revising HIV disclosure statute.'

The state of Iowa currently has one of the strictest HIV laws in the nation, making the lack of disclosure a Class B felony, punishable by up to 25 years in prison and a lifetime of sex offender status.

The statute makes no exception for lack of transmission of the HIV virus, nor does it take into account the fact that a person infected with HIV is taking the prescribed medication and has very little or no chance of passing it on.

Gay rights groups and others, including the Iowa Department of Public Health, are calling for modernization of the 1998 statute to focus penalties only on intentional or documented transmission of the HIV virus.

They say Iowa’s law is having the unintended effect of discouraging individuals from undergoing HIV testing and from obtaining access to medications that could save their lives and the lives of everyone with whom they may have intimate contact.

Iowa, which has a relatively low HIV incidence rate, ranks second in the nation in prosecutions for nondisclosure.

Pictured Left to Right: Iowa State Representative Sharon Steckman and State Senator Amanda Ragan, CHAIN community organizer and Sero Advisory Board Member, Tami Haught leading Iowa's campaign to modernize the HIV criminalization law and Sero Advisory Board Member and Activist, Nick Rhoades at a community forum in Mason City on Iowa’s HIV Criminalization Law on Monday, September 10, 2012. (Picture courtesy of The Sero Project)

Reproduced below is the press release from CHAIN (Community HIV/Hepatitis Advocates of Iowa Network) announcing the Iowa HIV Community Planning Group vote and providing background to their advocacy.

HIV Community Planning Group Supports Repeal of Iowa HIV Criminlization Statute

Des Moines, September 25, 2012

In an historic move, the Iowa HIV Community Planning Group has voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalization statute.

Iowa, like most states, has a law that prohibits intentional transmission of communicable diseases. This statute, Iowa Code 139A.20 is part of public health code. HIV, however, is covered by a separate criminal code, Iowa Code 709C, which makes exposing someone to HIV without their consent a felony punishable by up to 25 years in prison. Repeal of 709C would allow HIV to be covered by the same public health code that governs other infectious diseases.

The National HIV/AIDS Strategy and the National Alliance of State and Territorial AIDS Directors has called for review of HIV criminalization statutes to bring them in line with contemporary science and knowledge about the real routes, risks, and consequences of HIV transmission. The Iowa Department of Public Health has echoed the call for review of the statute. In a letter to the editor of The Des Moines Register on July 29, Randy Mayer, Chief of the Bureau of HIV, STD, and Hepatitis, asked that HIV be treated in the same way as other serious infectious diseases.

“Testing and treatment are our best tools for fighting the epidemic in Iowa Research has now demonstrated that the statutes haven’t had the intended effect of promoting disclosure. We believe that our public health efforts will be more successful without having to fight the stigma that these statutes can create,” said Mayer.

“Having the prestige and expertise of the HIV Community Planning Group working to repeal Iowa’s criminalization statute is vitally important,” said Tami Haught, an HIV+ Nashua resident who is coordinating CHAIN’s statewide campaign to reform the Iowa statute. “The members of the CPG include some of the best-informed and most respected public health professionals and community advocates combating HIV We believe their recognition that the criminalization statute is hurting the public health will be persuasive with legislators.”

Iowa’s statute 709C imposes harsh penalties on persons with HIV who cannot prove they disclosed their HIV status in advance to sex partners. About 25 Iowans with HIV have been charged to date, with some convictions resulting in lengthy sentencing and lifetime sex offender registration requirements, even though HIV was not transmitted and there was little or no risk of it being transmitted.

The statute has been criticized by public health officials, legal experts, and patient advocates in Iowa and across the country as counter-productive, discriminatory, and contributing to further stigmatization of people with HIV. About 36 U.S. states and territories have HIV-specific criminal statutes Originally intended to slow HIV transmission, these laws were typically passed years ago when much less was known about HIV transmission A growing body of research shows how these statutes drive stigma, discourage testing, and are making the epidemic worse.

“HIV criminalization discourages people from getting tested—you can’t be prosecuted if you don’t know your HIV status—yet we know that most new infections are transmitted by people who have not yet gotten tested,” said Jordan Selha, co-chair of Iowa’s Community Planning Group “It’s time we treat HIV like other communicable diseases and use public health science rather than criminal law to guide our approaches to prevention No other disease is singled out as a criminal threat in this way.”

CHAIN has coordinated a statewide campaign to educate and mobilize communities to lobby lawmakers to review the statute when the legislature goes into session in January 2013. They have held community forums in Mason City and Ames.

You can help efforts to repeal the statute by contacting your state legislators and the governor’s office and asking that Iowa Code 709C be repealed. CHAIN will be holding an educational forum on October 15th at the First Unitarian Church of Des Moines and at Simpson College in Indianola on January 16, 2013.

The HIV Community Planning Group promotes, through an ongoing participatory process, effective HIV programming in Iowa in order to reduce the spread of HIV and to provide access to services for those infected. The Centers for Disease Control and Prevention (CDC) mandated community planning for HIV prevention in 1993. The process is designed to create a collaborative effort between public health and the communities they serve.

CHAIN is very excited to have the support of the Iowa HIV Community Planning Group. To join CHAIN’s listserve or get involved with CHAIN and the education and mobilization campaign, contact tami.haught2012(at)gmail.com, or follow CHAIN on Facebook.

Sweden: Majority of MPs want to reform HIV disclosure obligation and 'HIV exposure' criminal liability

Two articles commemorating 30 years of HIV in Sweden in Svenska Dagbladet by journalist Tobias Brandel suggest that public – and political – opinion is being positively impacted by a two-year campaign by RFSU (the Swedish Association for Sexuality Education), HIV-Sweden, and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) to raise awareness and advocate against overly-broad HIV criminalisation.

The first article, with the headline, 'HIV-positive convicted harsher in Sweden' focuses on the fact that although HIV has been transformed from a fatal to a chronic disease, more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and '90s combined.

The second, with the headline, 'HIV-law divides Government' highlights the fact that a majority of MPs want to revise both the Communicable Diseases Act (with its 'information obligation') and the criminal law that currently allows prosecutions for people with HIV for potential or perceived HIV exposure as well as transmission. However, there are divisions within both the coalition Government and the leading opposition parties.

Since these articles are the most up to date descriptions of the current moves towards law and policy reform in Sweden, I am including (in English via Google translate, with slight amendments for clarity) the full text of both articles below.

This is the Google-translated version, read the original article here

When Joakim Berlin received his diagnosis, HIV was a death sentence.

"The big question my relatives asked was when I was going to die. Of course, I thought it would go pretty quickly," he says.

It was 1991, five years before the arrival of antiretroviral drugs. Today he leads a "totally normal" life.

"Sometimes I get side effects such as cramps and fatigue. But HIV's biggest impact has been on my social life. Human ignorance is problematic. The fear is still there." Neither legislation nor case law has followed the progress of medicine. Although HIV has been transformed from a fatal to a chronic disease more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and '90s combined. Anyone who has HIV - and knows it - and has unprotected sex with another person is at risk of prosecution for 'aggravated assault', 'attempted aggravated assault' or 'creating danger'.

The last year has seen four such convictions in Sweden,  according to a review by Svenska Dagbladet. All have resulted in prison sentences - even though they were not convicted of infecting their sexual partners. Only in one case was found to be HIV-positive plaintiff, but failed to clarify whether it was the offender who infected him.

A total of 44 people have convicted of crimes related to HIV since the late 1980s. This makes Sweden one of the countries in the world with the largest number of prosecutions in relation to the number of HIV-positive people, according to the Global Criminalisation Scan.

Sweden was also singled out as a bad example of how the law is used against people with HIV at the International AIDS Conference in Washington last summer. Even UNAIDS, the UN organisation for HIV / AIDS, criticises Sweden.

Ake Örtqvist, an infectious disease physician for Stockholm County Council, is critical of the Swedish court's reasoning over risk and intent.

"The courts judge very differently which is very unfortunate. Courts and prosecutors should have an increased knowledge about the disease and the concept of risk," he says.

Last year Denmark abolished a law that criminalises people with HIV referencing the current effective HIV drugs.

"The impact that treatment has in lowering viral load and infectiousness is very real, even if it is scientifically always hard to say zero. I think the courts reasoning is odd and they should embrace the fact that infection risk today is extremely small. One must ask whether it is reasonable to judge according to the Penal Code when the infection is well controlled and transmission has not occurred," said Jan Albert, Professor of Infectious Disease at the Karolinska Institute. In other words, the virus is spread very rarely by "HIV-men" as the condemned is usually called in the media. The real vectors are people who do not know they have HIV and therefore do not receive treatment.

According to the Communicable Diseases Act HIV-positive individuals must inform their sex partners of their status before having sex. Although it is not possible to judge according to the Infectious Diseases Act so courts often refer to information obligations.

Both RFSL and RFSU argue that the law is actually counter-productive.

"Of course you should tell if you have HIV before sex, but you should not risk punishment if you fail to do so. Criminalisation can also lead to a false sense of security, to believe that the person who is not saying anything does not have HIV," says RFSU President Kristina Ljungros.

She also believes that the prosecutions may deter people from testing. Even the UN-backed Global Commission on HIV and the Law concludes in a new report that criminalisation contributes to fewer people knowing their HIV status.

Preliminary data from a new U.S. study, received by Svenska Dagbladet, supports these ideas. The Sero Project, in collaboration with Eastern Michigan University interviewed more than 2000 HIV-positive individuals in the United States. Half of the respondents believe that it is reasonable to avoid HIV testing for fear of prosecution, and one in four say they know one or more individuals who chose not to test for fear of being prosecuted.

Joakim Berlin has lived with the virus for over 20 years and works at Positive Group West [part of HIV Sweden] as well as being a member of RFSL's board.

"It is the responsibility of both parties to protect themselves, so you cannot have laws that criminalise only one party," he said.

Is it not reasonable to tell your sexual partner so that he can make an informed decision?

"I have the responsibility to ensure that you do not get HIV, and you have the responsibility to ensure that you are not putting yourself at risk," he says. "The law places full responsibility on the HIV-positive person while everyone else thinks that they can do whatever they want without consequences. Most people get HIV from someone who does not know their HIV-positive status."

This is the Google-translated version, view the original here

Legislation and case law surrounding HIV has not kept pace with developments in medicine, as Svenska Dagbladet showed yesterday. Although modern HIV treatment reduces infectiousness dramatically, the law is the same as in the 1980s. There is now a majority in parliament who want a review of the Communicable Diseases Act, which forces people with HIV to disclose their status before having sex.

"We think that the issue should be revisited. Our knowledge about HIV is changing rapidly. We can not have laws that are outdated," says Barbro Westerholm, Liberal Party social policy spokesperson.

As previously reported to Svenska Dagbladet both infectious disease doctors and scientists are critical of Swedish courts that sentence HIV-positive people to prison for unprotected sex, despite there being no alleged transmission. As well as revisiting the Communicable Diseases Act, the Liberal Party would  like there to be a review of judicial practice.

The position of the Moderate Party is that there is no need for such a review, but the Party is now in discussion.

"We have not changed our minds, but we're talking about it. It is clear that we must keep up with new facts and analyses. There is a debate," says Mats Gerdau, a member of the social committee [which would recommend such a review to the Government].

The Centre Party is open to an amendment of the Penal Code in respect of how the courts reason about intentional and negligent [states of mind] - but they are clearly against removing the Communicable Diseases Act's notification requirement.

"There is an information obligation for all diseases that are generally hazardous. It is completely illogical to say that it should be removed only for HIV," says Anders W Jonsson, chairman of the social committee.

The Christian Democrats see no need for any kind of review. All four Alliance parties must agree before the law can be reviewed. The [opposition] Social Democrats, The Green Party and the Left are all clear that they want the information requirements to be removed for HIV.

"The law is counterproductive. It places responsibility solely on the person with HIV. It is a repressive law which, at worst, means people do not get tested," says Eva Olofsson (Left), also a member of the social committee.

Agneta Luttropp (Greens), another member of the social committee, believes that the law creates a false sense of security.

"The responsibility to protect is on both sides, on both the person who may have HIV and the person who does not. We hope and believe that a change in the law could lead to people being more invested in having protected sex," she says.

However, the Social Democrats want to keep the information obligation and do not believe that judicial practice needs to be reviewed.

New Zealand: Court of Appeal rules HIV non-disclosure is sexual assault

Update(s): 12/13th March 2012

The New Zealand Court of Appeal has ruled that otherwise consensual unprotected sex without disclosure of known HIV-positive vitiates consent, meaning that potential HIV exposure (non-disclosure without transmission) could well be upgraded from criminal nuisance to sexual assault in future criminal cases.

The ruling is the result of a long-running civil liability compensation suit from the female complainant in a 2005 New Zealand case. See my original post from 2009, below, for details of the case.

Although the ruling relates to a civil suit and not the criminal law, it provides "a really good steer" for police, prosecutors and judges to use the ruling in future criminal cases, according to the New Zealand Law Society's Jonathan Krebs, interviewed on Radio New Zealand about the case.

The ruling was reported today in The Dominion Post, and on TVNZ.

However, only Radio New Zealand's website reported the reaction of the New Zealand AIDS Foundation to this precedent-setting ruling that could mean that in the future HIV non-disclosure may be punishable by up to 20 years in prison.

The Aids Foundation says that a Court of Appeal ruling that says people with HIV could be charged with rape if they do not tell a sexual partner about their disease, is over the top.

In a precedent setting decision on Monday the Court of Appeal in Wellington ruled people with HIV could be charged with rape if they do not tell a willing sexual partner about their disease.

However, The Aids Foundation's executive director Sean Robinson says the law is adequate in dealing with people who did not disclose their disease.

Original post: 14th July 2009

The New Zealand Court of Appeal is to hear a civil liability case from the female complainant in a 2005 New Zealand HIV exposure case that has the potential to change the law and make HIV non-disclosure a more serious crime. The case centres around whether unprotected sex without disclosure vitiates consent, as it does in Canada. If it does, then HIV exposure (non-disclosure without transmission) could be upgraded from criminal nuisance to sexual assault.

According to a story from the NZ Press Association, the woman has been trying to get compensation for years following the 'distress' of having had unprotected sex with an HIV-positive man for four months. The woman did not test HIV-positive.

She was in Wellington High Court last week to ask whether she could appeal an earlier High Court decision upholding a previous District Court decision that agreed that the Accident Compensation Corporation's (ACC, the NZ Government's accident and injury compensation board) decision to refuse payment for mental injury was correct.

The woman behind this appeal was known as "Shannon" during the first (2004-2005) court case against 35 year-old Justin Dalley.

Although a second complaint led to the groundbreaking ruling that non-disclosure with condom use was not required in New Zealand, in this case Mr Dalley pleaded guilty to the charges of criminal nuisance for having unprotected sex with "Shannon" for four months without disclosing his HIV status.

He was sentenced to "300 hours' community work, six months' supervision and... [NZ]$100 reparation to ["Shannon"] to cover her counselling costs and expenses."

Mental injury caused by criminal nuisance is not covered under the Injury Prevention, Rehabilitation, and Compensation Act (which governs ACC payouts), but "Shannon" and her lawyers are pushing the boundaries of civil and criminal law by claiming "that the man's offending was also a criminal act of a kind that was covered by the IPRC Act, such as sexual violation or indecent assault."

Lawyers for the woman accepted that the district court was bound by an earlier decision, CLM v ACC, though that case never went as far as the Court of Appeal. The judge said that in that case, which dealt with similar issues, the High Court had ruled that it was not a criminal act of the kind contemplated because those acts required lack of consent. "In that case, as in the present, the sexual intercourse was consensual[, said Justice Jill Mallon]. The High Court concluded that under New Zealand law, as it presently stood, the non-disclosure by the man that he was HIV positive did not vitiate the woman's consent." The High Court judge said at the time that any change to the law in this respect was a matter for Parliament.

By allowing the appeal, Justice Mallon has also allowed for the possibility that HIV non-disclosure may become a more serious crime in New Zealand if the Court of Appeal rules in her favour. This appears to be "Shannon"'s ultimate goal. An article from TVNZ.com at the time of Dalley's 2004 arrest in what would become the condom ruling case highlighted that "Shannon" was trying to get NZ law changed to require HIV disclosure regardless of condom use.

Dalley's ex-girlfriend "Shannon" has been fighting for a law change so anyone with HIV has to disclose their status whether they practise safe sex or not. "I don't think anyone's got the right to decide to put someone else's life at risk and I think it's only fair that somebody should know all the details," she says.

Later, in an article published in the New Zealand Herald at the time of Dalley's 2005 sentencing, "Shannon" was said to be angered by the non-custodial sentence.

The woman, known only as "Shannon", said the judge's decision had sent a strong message to every HIV-positive person that Dalley's behaviour was acceptable. "I was willing to accept home detention but not this." She said she had been unable to work during the nine-month case and had lost about $30,000 in wages. Judge Behrens said the woman had discovered Dalley's condition after receiving a letter from someone who knew him. She was traumatised, lost her job and was unable to face friends.

Interestingly, the article also reveals that following the discovery that her partner was HIV-positive, she "had lied to Dalley and his family, telling them she was HIV-positive." It was that, along with Dalley's early guilty plea, which had resulted in his lenient sentence.

Given the hysteria surrounding the current 'HIV predator' case, which has included calls for public health and privacy law reform, it is entirely possible that the Court of Appeal might be more willing to reconsider whether non-disclosure of HIV status deserves to be upgraded to a more serious 'crime'.

Switzerland: New Law on Epidemics only criminalising intentional transmission passed in lower house

In a remarkable turns of events in the Swiss Federal Assembly's National Council (lower house) yesterday, the new, revised Law on Epidemics was passed with a last minute amendment by Green MP Alec von Graffenried that only criminalises the intentional spread of a communicable disease.

The history of the revision of the Swiss Law on Epidemics has been a long and rocky one. The redrafting of revisions to Article 231 of the Swiss Penal Code – one of the most draconian and discriminatory laws on HIV exposure in the world – began in 2010.

The first draft of the proposed new article removed much of the most draconian provisions (i.e. allowing for prosecutions of an HIV-positive partner despite an HIV-negative partner's full, knowing consent to unprotected sex) leaving only intentional exposure or transmission a criminal offence.  Broad stakeholder consultation agreed with this draft.

However, in December 2010, a new draft presented by the Swiss Parliament's Executive Branch (Federal Council) ignored the consultation and added lesser states of mind – simple intention and negligence – as well as malicious intent, despite the broad acceptance that the previous version had achieved amongst all stakeholders. Furthermore, the bill introduced a new paragraph creating an HIV disclosure defence.

At a mid-2011 hearing, the National Council's Committee on Social Security and Public Health (tasked with the re-drafting of the Law on Epidemics) appeared to be open to moving back towards the original draft. The Committee explicitly recognised that the present criminalisation of consensual unprotected sex between a person with HIV and one without undermines prevention efforts and the principle of shared responsibility of both sexual partners.

However, at the end of 2011 the Committee produced further amendments that discarded the disclosure defence but which added "lack of scruples" and "self-serving motives" as alternative elements of intent. The Committee remained split on the question of negligence with the majority opting to retain the section and the minority recommending it be stricken.

So it came as a very welcome surprise that, when the bill finally reached the National Council for debate and final vote yesterday, an amendment by Green MP Alec von Graffenried was proposed at the last minute and almost immediately and overwhelmingly passed by 116 votes to 40.

A transcript of the entire proceedings (in a combination of French and German) are available here, but below I quote the full (unofficial) English translation of von Graffenried's speech (courtesy of Nick Feustel) explaining his amendment.

In short, he says that the Law on Epidemics needs to deal only with public health issues, such as bioterrorism, and not address harm to individuals.  He notes that general assault laws already exist to punish egregious cases of HIV transmission and that much of the proposed bill is not only redundant, but confusing.  "You can't be 'negligent', 'malicious' and 'unscrupulous' at the same time, that's just not logical," he argued, quite convicingly.

Advocates in Switzerland were overjoyed at this unexpected turn of events, but one government insider warns that we should not celebrate too early. The bill must now go through the Health Commission of the Council of States (upper house), before it goes to a final vote, and this could take some time (June is mooted, but not definite) and so there may still be further amendments.

For now, however, the clear logic and rationality of von Graffenried is to be celebrated.

Hopefully these developments will have an impact on other countries, too, notably Norway where a similar commission is debating changes to laws that are eerily similar in purpose and outcome to Switzerland's notorious and outdated Article 231.

Von Graffenried's Speech

"I speak for the parliamentary group of the Green Party, but of course also in part for my proposition as an individual. This is about punitive laws, we are talking about the amendment of Article 231 in the Penal Code. Reading the draft doesn't really make you understand what the Commission was about. So I stopped short and then tried to make it clearer in my proposition. As Mrs Schenker explained earlier, there were still some unanswered questions after the Commission's consultation.

"The problem is that when it comes to transmission of diseases there are always two levels. On the one hand, there is the individual level, the individual health of the aggrieved party. Their health and physical integrity are protected by Articles 111 and the following on those offenses at the beginning of the Special Section of the Penal Code. On the other hand, there is the disease-control part of it. This is the part that article 231 is meant to deal with. That was – how I learned from conversations with the Commission's members – the Commission's concern. Article 231 in its present form confuses these two levels. That is how, until now, for example an HIV positive person becomes guilty of bodily harm according to article 123 as well as the spreading of human diseases according to article 231.

"In their draft, the Federal Council completely revised article 231. They included a 'basic offense', a 'qualified offense', a 'privileged offense' and a 'negligent offense'. But they still adhered to article 231 protecting individual health as well as being effective for disease-control. This was obviously not what the Commission wanted, and so they slashed the article.

"Obviously, the Commission didn't want to adopt this concept. They only wanted to adopt the 'qualified offense', i.e. a highly criminal, if not even terroristic offense. This is about public health, i.e. the spreading of epidemics. This is what I adopted for my proposition. Possible intentional or negligent bodily harm or even manslaughter are covered by the regulations in Article 111 and the following of the Penal Code. Those are about individual health. Thus, criminal liability is only carried out under these regulations, but not anymore under Article 231 of the Penal Code on the spreading of human diseases.

"However, the Commission adopted the 'negligent offense'. I'll have to expatiate on this.

"The negligent perpetration is already regulated under the Administrative Criminal Law. Having an article in the Penal Code on this is unnecessary, because this regulation is already included in Articles 82 and the following of the Epidemics Law, which you have just enacted without discussion. Negligent perpetration is already included there.

"The Commission's version is not possible, because the Commission eliminated the 'basic offense'. You can't be 'negligent', 'malicious' and 'unscrupulous' at the same time, that's just not logical. Paragraph 2 would become ineffective, but at the same time it would also prevent the application of the Administrative Criminal Law, because Article 82, paragraph 1 excludes applying the Administrative Criminal Law, because the Penal Code does have this regulation.

"Therefore, I ask you in the name of the parliamentary group of the Green Party to accept my proposition as an individual, in order to clarify the punitive laws."

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

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

Download the letter here

Original post: March 31st

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

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

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

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

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

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

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

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

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

By signing, you help:

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

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

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

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

Your help is very much appreciated!


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


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


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


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


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


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




Yours sincerely,

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.

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

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

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

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

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

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

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

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

Further, NASTAD encourages its members to:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Approved by NASTAD’s Executive Committee: February 2011

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

Denmark's Justice Minister Lars Barfoed has today suspended Article 252 of the Criminal Code – the so-called 'HIV law' – pending an inquiry by a government working group to consider whether the only HIV-specific law in Western Europe should be revised or abolished.

The move was announced today in a press release by AIDS-Fondet (AIDS Foundation) and covered in the gay magazine, Out and About. (Both of these are in Danish, and so I'm relying primarily on Google Translate, although colleagues in Denmark have also been in touch to tell me the exciting news.)

Denmark prosecuted its first case in 1993, but the Supreme Court found in 1994 that the wording of the existing law (“wantonly or recklessly endangering life or physical ability”) did not provide a clear legal base for conviction. The phrase “fatal and incurable disease” was added in 1994, and HIV was specified in 2001.

According GNP+'s Global Criminalisation Scan here have been at least 18 prosecutions: at least one failed due to the accused committing suicide. At least ten involved non-Danish nationals, including seven people of African origin. At least eleven convictions for either sexual HIV exposure or transmission are reported. The maximum prison sentence is eight years.  

Today's announcement came about as a result of a Parliamentary question from opposition Unity MP, Per Clausen on behalf of the Parliamentary Legal Committee.

"The Minister should state whether the Ministry [of Justice] will consider changing or eliminating the special clause in the legislation that criminalises [HIV-positive individuals for] unprotected sex with uninfected [individuals] in light of the significantly improved treatment options for HIV-positive people, in particular since treatment is able to reduce the risk of infection to [near] zero."

In his reply, Justice Minister Lars Barfoed explains the history of the legislation and then quotes the Health Protection Agency about HIV 'risk' and 'harm'.

 "Modern combination therapy reduces HIV in the blood by more than 99% during the first weeks of treatment, whereby patients' general condition improves. The strongly reduced amount of HIV in blood and tissue fluids also greatly reduces the risk of transmission from an HIV-positive person on antiviral therapy. This greatly reduced risk is difficult to quantify but considering the risk to be near zero is a theory that some doctors have put forward, but there is no national or international consensus that about this...The life-expectancy of someone with HIV is no different from the age- and gender-matched background population. HIV is, in other words, not in itself fatal if treated in time; medication taken regularly; and there are otherwise no complications from other diseases, etc. Timely treatment is now so effective and well tolerated, that 85-90% of patients can live normal lives if they take their medication daily. It is the 5-10% of patients who are diagnosed late who still experience a substantial excess mortality and morbidity. [However] HIV is still incurable."

He goes on to say that the law as it is currently written - casting HIV as a life-threatening condition and criminalising unprotected sex by a person with HIV – appears to be obsolete and that the working group must consider whether to amend, or totally rewrite, Article 252.

The working group will comprise Justice Minister Barfoed and Interior Affairs and Health Minister Bertel Haarder with representatives from the Ministry of Interior, Ministry of Health, the Health Protection Agency and the Prosecutor General.  It is believed they will come to a conclusion later this year. (Update Feb 22: My contact at AIDS-Fondet tells me this process will take place much sooner, within the next two months.)

In their press release AIDS-Fondet notes that it has been working on changing the law for years and so this development is very welcome.

We hope this suspension is the beginning of the end of the so-called HIV Criminal Law. This criminal provision is in itself a barrier to prevention, and there has also long been a need for the improved treatment of HIV-people to be reflected in the Penal Code, says Henriette Laursen, AIDS-Fondet's director.

Two of Denmark’s foremost HIV experts, Professor Jens Lundgren and Professor Jens Skinhøj, have previously called for the law’s abolition.