Global Commission on HIV and the Law: an analysis of their HIV criminalisation recommendations

Today, the Global Commission on HIV and the Law finally issued its long-awaited report, 'HIV and the Law: Risks, Rights and Health.'  It was well worth the wait.

"Fundamentally unjust, morally harmful, and virtually impossible to enforce with any semblance of fairness, such laws impose regimes of surveillance and punishment on sexually active people living with HIV, not only in their intimate relations and reproductive and maternal lives, but also in their attempts to earn a living."

That's how the Chapter 2 of the report, focusing on the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission begins.  The rest of the chapter pulls no punches either.

Of course, the Global Commmission, and the report itself, cover much more than HIV criminalisation, and it pulls no punches recommending repeal of punitive laws impacting consensual same-sex sex, sex work, drug use and patent laws affecting access to HIV treatment.  However, since this blog - and the focus of my work - is specifically about HIV criminalisation I'm only going to focus on the six pages in the report (and five pages of references) that specifically addresses this issue. 

Five recommendations on HIV criminalisation: click on image to enlarge

To cut to the chase, the report recommends the following:

To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:

2.1. Countries must not enact laws that explicitly criminalise HIV transmission, HIV exposure or failure to disclose HIV status. Where such laws exist, they are counterproductive and must be repealed. The provisions of model codes that have been advanced to support the enactment of such laws should be withdrawn and amended to conform to these recommendations.
2.2. Law enforcement authorities must not prosecute people in cases of HIV non-disclosure or exposure where no intentional or malicious HIV transmission has been proven to take place. Invoking criminal laws in cases of adult private consensual sexual activity is disproportionate and counterproductive to enhancing public health.
2.3. Countries must amend or repeal any law that explicitly or effectively criminalises vertical transmission of HIV. While the process of review and repeal is under way, governments must place moratoria on enforcement of any such laws.
2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.
2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.

The first four points are consistent with the 2008 UNAIDS/UNDP Policy Brief recommendations but go further in terms of tone. For example, using "must" rather than "should".

Point 2.3 on vertical transmission really needs no further explanation and should be implemented immediately. 

But what did the Commission mean by some of the recommendations, which, when you read them from the point of view of a legislator, or someone who can affect policy in the criminal justice system, might not be quite as clear as they could be?

And what about point 2.5 recommending that anyone imprisoned for HIV non-disclosure, potential exposure or non-intentional transmission have their case reviewed?  Although it doesn't spell out the criteria for review, they should be consistent with the International Guidelines on HIV and Human Rights published by UNAIDS and the Office of the United Nations High Commissioner for Human Rights (OHCHR).  Since 1998 they have recommended that in order for someone to be convicted, “the elements of foreseeability, intent, causality and consent [must be] clearly and legally established to support a guilty verdict....” If we now consider that the Commission recommends that only intentional and malicious transmission should be a crime, if the above criteria have not been met (and in most cases they have not), the Global Commission recommends immediate release from prison, a pardon and removal of criminal records (and in the US and Canada, removal from the sex offender registry).

I asked Professor Matthew Weait, who served as a member of the Technical Advisory Group for the Commission (the TAG), with particular responsibility for HIV criminalisation about how we should interpret recommendations 2.1, 2.2 and 2.4 in the real world.

The excellent working paper that he prepared for the Commission, The Criminalisation of HIV Exposure and Transmission: A Global Review is also now available to download. A second paper, Criminalisation and the Moral Responsibility for Sexual Transmission of HIV by Matthew and his fellow TAG member, Professor Scott Burris is also now available.

Q: In 2.1 Does the Commission only recommend repealing laws that explicitly criminalise non-disclosure, exposure or transmission?  What, for example, does that mean for Canada, which uses general laws to prosecute non-disclosure?

It's a good question!  Before I answer it, can I emphasise that what I say here should in no way should be seen as reflecting the views or interpretation either of other TAG members, the Commissioners, or the UNDP Secretariat that provided logistical and other support.  They are personal views.  So - with that in mind - I think it's important to read this Recommendation in the context of the Report as a whole. What is abundantly clear is that the Commission believes that only the actual and deliberate transmission of HIV may legitimately be criminalised, and all the Recommendations need to be read in that light. This means, in my view, that countries which criminalise HIV under their general laws are also being addressed here.  The reason is that in many such countries it is only HIV transmission, exposure and non-disclosure which is prosecuted in the criminal courts under general provisions which could also be used in the context of other diseases.  The fact that other diseases are not, or extremely rarely so, means that HIV is - to my mind - explicitly criminalised.  Just because HIV is criminalised under a general law doesn't detract from the fact that such criminalisation is explicit in practice.  You'll have to follow this up with the Commission though!

Q: In 2.2 Does the Commission mean that law enforcement authorities can prosecute for HIV exposure and non-disclosure where there is proof of intentional or malicious transmission?

I don't think so, no.  The "must not" construction of the Recommendation does not imply the opposite, especially where to read it this way would be against the entire tenor of the Report. It is very important, in my view, that law enforcement authorities do not take this as a "green light" – not only because it would lead to over-criminalisation (belt and braces) - but it would serve no purpose.  

Q: In 2.4 Does the Commission suggest that prosecutions can still take place that aren't malicious?  How do you prosecute "with care"?

This Recommendation is in permissive language, similar to that used in the UNAIDS 2008 Policy Guidance, and does not - I think this is important - mandate criminalisation as such.  It seems to me to be intended to provide states with a “let out” clause, reflecting the views of many in the wider HIV policy community, and is politically pragmatic and realistic. Some might think it is a unfortunate that this is in a list of Recommendations, but I think I understand why it has been. It might have been better to phrase the Recommendation in the form, “If countries wish to criminalise HIV, they should only do so in cases of actual and intentional transmission”, but I don't think we should get too hung up on the exact language here. As with the other Recommendations, it has to be read in the light of everything else in the Report, where it is clear that Commission is arguing for the most restrictive approach possible. It will also, by the way, be important to see whether the Report itself addresses in more detail what is meant by intentional and malicious. Different jurisdictions interpret these terms is in a variety of ways – some equating them with knowledge of status, some with knowledge of the risk of transmission, and some with deliberate or purposive intent (or a combination of all these). The fact that the Commission uses the term “malicious” in Recommendation 2.2 suggests that it has in mind deliberate and purposive intention

As for question of pursuing prosecutions 'with care', it is clear that the Commission has affirmed what has been emphasised in a number of recent policy documents, including a recent initiative of UNAIDS.  The highest (I would personally have preferred that, rather than “high”) is necessary when dealing with liability based on expert evidence (as transmission cases typically are, at least where the scientific analysis facilities are available).

Catherine Hanssens highlights the problem with US HIV disclosure laws

This morning, the Global Commission held a press conference that featured several of the Commissioners: US Congresswoman Barbara Lee; Canada's Stephen Lewis (Co-Director and Co-Founder of AIDS-Free World); and His Excellency Mr. Festus Gontebanye Mogae, former President of Botswana.

Three members of civil society also participated: Nevena Ciric, More than Help, AIDS +, Serbia; Maurice Tomlinson, AIDS-Free World, Jamaica and Nick Rhoades, Positive Justice Project, The Center for HIV Law and Policy, United States.

Nick Rhoades spoke with clarity and power about the lessons learned from his own terrible experience. HIV criminalisation wastes money, harms prevention and human rights, he concluded. Return sanity, science and justice to HIV laws.

I was convicted in 2008 under Iowa’s law titled “criminal transmission of HIV” although HIV was not actually transmitted.  This involved a one-time, consensual sexual encounter with another adult.  My viral load was undetectable, I used a condom – and again, I did not transmit HIV.  However, none of these facts mattered in the eyes of the law.  The judge imposed the maximum sentence of 25 years in prison and the requirement to register as a sex offender for the rest of my life.  After sentencing, the judge was subject to a significant amount of pressure from advocates in the U.S. and even Europe – requesting my sentence be reconsidered.  After being incarcerated for over a year, he released me on five years probation, but I am of course, still a sex offender. [Nick is now appealing his conviction.]

During my course through the correctional system, I transferred facilities four times.  Each time I was transferred, I would be either without medications or missing certain medications for a period of days. And when I was released, I had lost my place on the AIDS Drug Assistance Program, so I was put on a wait-list. The correctional system offered no assistance in finding a social worker or medication assistance once I was released from prison.

The personal toll this has taken on me and my family and friends cannot be measured.  This has caused great mental anguish, financial burdens and major professional barriers for me, now that I am a sex offender.  I have been virtually unemployable.  I am fortunate enough now to be employed from home by The Center for HIV Law & Policy, but most aren’t so lucky.  To this day, I deal with terrible depression.  It’s not easy.

What’s more, the price to enforce these archaic laws is considerable.  The approximate cost to tax-payers to incarcerate just one individual in Iowa – factoring in the cost of medications and routine medical care is approximately sixty-five to seventy thousand dollars annually. This cost is borne by tax-payers and doesn’t include the lost income and contribution to society that incarceration causes. Then consider the price to supervise people convicted under these laws while on probation or parole – often being forced to add in the costs of monitoring offenders on the sex offender registry – and the public is paying an incredible amount of money for enforcing laws that, more often than not, are punishing people for not transmitting HIV.  In many cases, such as mine, taxpayers are paying for the enforcement of laws that punish people with HIV who actually follow the primary prevention messages of public health counselors: stay in treatment, keep your viral load as close to undetectable as possible, use condoms – and otherwise, keep sex safe[r].

These laws enhance stigma that cripples people living with HIV/AIDS from accessing services. They make disclosure issues much more difficult due to ramifications one may face with a mere accusation. I also believe stigma, made thicker by these laws, is keeping people from getting tested.

Furthermore, I have been a member of the Iowa HIV Community Planning group – chaired by the Iowa Department of Public Health – since 2009.  I see all the data.  This year, the Iowa Department of Public Health’s prevention-based budget faced a 25% decrease which will eventually grow to 55% over the next five years. Dollars marked to treat people in care are next for slashing.  Those in care and with undetectable viral loads are up to 96% less likely to transmit the virus, yet we are cutting funding away from proven HIV prevention programs while increasing costly prosecution and imprisonment of people like me living with HIV.  When one considers that there is no evidence that these laws have any impact on people’s sexual behaviors, it is clearly not an effective use of our resources while infringing on individuals’ human rights and working in conflict with public health goals.

Criminal laws and policies that target people based on their HIV status must be repealed.  Please support Congressperson Barbara Lee’s “Repeal HIV Discrimination Act” now, and engage with those who are promoting the movement to return sanity, science and justice to the law’s treatment of HIV.

Following Nick's powerful testminony, much of the rest of the Global Commission press conference mostly focused on HIV criminalisation in the US and Canada - as it should since the vast majority of prosecutions take place in these two countries, a fact highlighted by Stephen Lewis and echoed by Nick Rhoades.

I was very honoured to be quoted in the report.

I asked Rep. Barbara Lee how it is posssible to change these bad laws when it appears that they have popular support. "Modernising these laws won't be easy," she said. "But I have to tell you that the public isn't really aware of these laws. Once you explain it to them, they're shocked. What we have to do is mount public education campaigns about these laws. At state level, many state legislators don't know these laws are on the books, and they can change them if there is the political will. So we need public and political education and civil society support for a political movement to hold politicians accountable. But... yes we can!"

As for other countries using general criminal laws to prosecute non-disclosure, potential exposure and transmission, in the next few months UNAIDS will be releasing a policy consideration document that will help countries understand exactly how to limit their application through a better understanding of HIV science as well as public health and human rights principles. 

There's going to be a lot more happening around the Global Commission's Report and all of the amazing evidence the Commission accrued during it's two year existence.  I recommend spending time on the Global Commission website where you will now find a treasure trove of documents to help further anti-criminalisation advocacy and eventually lead to HIV justice for all.

Scotland: New guidance on prosecutions clarifies law, recognises treatment's impact on infectiousness

On May 1st, the Crown Office and Procurator Fiscal Service (COPFS) published their Guidance for Scotland on 'Intentional or Reckless Sexual Transmission, or Exposure to, Infection'.

According to COPFS, the policy aims to "provide guidance to prosecutors but also provide clarity and consistency about this area of the law."

As well as being helpful in Scotland, the guidance should also be a useful educational and advocacy tool for those many other jurisdictions around the world that prosecute alleged HIV exposure as well as transmission.

Scotland is only the second jurisdiction in the world that uses general criminal law for (mostly) HIV-related prosecutions to produce such guidance. They were a direct result of the Crown Prosecution Service (CPS) for England and Wales' policy and guidance, first published in March 2008 and updated in July 2011.  In fact, the COPFS guidance specifically states that

where possible, COPFS has sought to reconcile our policy and practice with the policy in England and Wales.

The CPS policy and guidance came about through a process initiated by key individuals from civil society although they are 'owned' and produced by the CPS. Like the CPS guidance, the COPFS guidance was advocated for by some of the same key individuals who were also consulted during the process. Unlike the CPS guidance, however, there was no public consultation.

THT, which advocated for, and were consulted on the guidance, along with NAT and HIV Scotland, welcomed the guidance with cautious pragmatism.

Catherine Murphy, Head of Public Affairs for the Terrence Higgins Trust, said: “Crown Office has a duty to prosecute criminal behaviour, but it also has a responsibility to ensure that the law is fair and fit for purpose. We hope this policy will provide greater clarity on a complex and highly sensitive issue. For good public health reasons people with HIV must be able to seek advice on sexual health issues without fear of being reported to the police. Nor should they be subjected to unjustified investigations because the law is vulnerable to misinterpretation by police and the courts.

Being consulted on, but not 'owning' the guidance, gave NAT, especially, the freedom to be quoted in the official COPFS press release as being supportive of the guidance but to highlight their concerns in their own press release, which also led to a news story in The Herald with the headline "Fears raised over 'punitive approach' to HIV exposure". In their own press release, NAT's Executive Director, Deborah Jack states

The Guidance allays many of our most significant worries - but we do still hope that a way can be found to end prosecutions for exposure to risk of HIV infection. Such prosecutions unjustly target people with an HIV diagnosis with all the responsibility for safer sex, despite the fact most transmissions are from the undiagnosed. They also encourage fear and secrecy rather than honesty and openness as we talk about sex - and so harm public health.'

Like the CPS guidance, the COPFS guidance is not HIV-specific despite the fact that all four prosecutions of sexual transmitted infections in Scotland so far have been for HIV (although Giovanni Mola was convicted of both HIV and Hepatitis C transmission). This was welcomed by the US Center for HIV and Policy in their note on the guidance, which states

In a particularly positive development, the guidelines do not single out HIV for special treatment, unlike the dozens of HIV-specific statutes that exist and are enforced in the United States.

Although the guidance has been broadly welcomed by civil society organisations working on HIV in Scotland (and elsewhere) they are a pragmatic response to an unwelcome situation. Guidance cannot change laws, but it can clarify uncertain aspects mitigating the harm of the overly-broad application of the criminal law.  (However one area not covered in this guidance are prosecutions and enhanced sentencing for spitting, biting and/or scatching whilst HIV-positive.  Scotland has had several of these recently, including this case reported today).

There is no legislation that specifically criminalises sexual HIV (or other STI) transmission in Scotland. Although it is possible to prosecute alleged intentional transmission as assault, all cases so far have been for 'reckless' exposure or transmission under the Scottish common law offence of ‘culpable and reckless conduct’.

Until the guidance was released yesterday it was unclear whether disclosure in the absence of condoms could be seen as a legitimate defence to accusations of 'culpable and reckless conduct’ (for alleged sexual exposure or transmission) because Scots law does not recognise consent as a defence to an assault charge.  The guidance has now clarified that prosecutions "will be unlikely" if disclosure of known HIV-positive status has taken place.

Importantly, the guidance has also clarified that alleged sexual HIV exposure charges will not be filed if the accused is on treatment with an undetectable viral load and was counselled that this meant there was a low risk of transmission. Specifically, the guidance states that

Prosecution will be unlikely where the following circumstances apply:

• The accused did not know that he/she was HIV positive
• The accused did not understand how HIV is transmitted
• The accused disclosed his or her HIV positive status to the victim
• The accused took reasonable steps to reduce the risk of transmission, for example, by using recommended precautions or avoiding higher risk acts
• The accused was receiving treatment and had been given medical advice that there was a low risk of transmission or that there was only a negligible risk of transmission in some situations or for certain sexual acts

Prosecution will be likely where the following circumstances apply:

• The accused deliberately misled or concealed information from the victim
• The accused did not attempt to reduce the risk of transmission, for example by failing to take prescribed medication or by failing to follow particular medical advice
• The victim was particularly vulnerable in some way
• There is evidence that the accused had intentionally embarked on a course of flagrant conduct

Download 'Sexual Transmission or Exposure to Infection - Prosecution Policy' from the COPFS website.

US: Positive Justice Project Members Endorse REPEAL HIV Discrimination Act

Press Release

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

Download the REPEAL ACT here

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                     

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.

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

South Africa's leader of the Democratic Alliance opposition party, Western Cape Premier Helen Zille has said that HIV-positive people who knowingly have unprotected sex without disclosing their status, should be charged with attempted murder. She also cited the recent case of German pop star, Nadja Benaissa, as an example for South Africa to follow.

Her remarks, reported in the Cape Times, were made during an address to the South African Institute of International Affairs last week.

She said the lack of personal responsibility contributed to some of the greatest social ills in the country.

"Social pathologies are complex, but I think we must all agree that promoting a culture of personal responsibility is essential to addressing all these things. We also need to take action against people who are HIV-positive and knowingly have unprotected sex without disclosing their status. This, I believe, is an offence on a par with attempted murder. This is complex and difficult, and requires enormous courage from the wronged sexual partner to lay a charge and give evidence," Zille said.

[...]

Zille said the recent court case against a German pop star for failing to disclose her HIV-positive status was an example to emulate. German singer Nadja Benaissa, a member of No Angels, was found guilty of causing grievous bodily harm to her ex-boyfriend by having unprotected sex with him despite knowing she had HIV. The 28-year-old was given a two-year suspended prison sentence and 300 hours' community service. Zille said the lack of personal responsibility contributed to some of the greatest social problems facing the country, such as HIV/Aids, alcoholism, drug abuse, teenage pregnancy, foetal alcohol syndrome, and absentee fathers who did not pay maintenance.

In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law. It concluded that "an HIV-specific statutory offence/s will have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence/s are not justified; and an HIV-specific statutory offence/s will infringe the right to privacy to an extent that is not justified."

A 2003 Criminal Law Amendment Bill sought to define non-disclosure of HIV status prior to otherwise consensual sex as rape, but that definition was not included in the version of the bill ultimately approved in 2007. Rather, the legislation requires HIV-antibody testing for suspected rapists and allows for longer prison sentences for rapists found to be HIV-positive.

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

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

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

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

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

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

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

What is this research about?

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

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

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

What did the researchers do?

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

What did the researchers find?

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

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

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

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

How can you use this research?

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

What you need to know:

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

About the Researchers:

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

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

Global: 'Where HIV is a crime, not just a virus' - updated Top 20 table and video presentation now online

Where HIV Is a Crime, Not Just a Virus from HIV Action on Vimeo.

Here is my presentation providing a global overview of laws and prosecutions at the XVIII International AIDS Conference, Vienna, on 22 July 2010.

Abstract: Where HIV is a crime, not just a virus: a global ranking of prosecutions for HIV non-disclosure, exposure and transmission.

Issues: The global (mis)use of the criminal law to control and punish the behaviour of PLHIV was highlighted at AIDS 2008, where Justice Edwin Cameron called for "a campaign against criminalisation". However advocacy on this vitally important issue is in its infancy, hampered by lack of information on a local, national and international level.

Description: A global overview of prosecutions to December 2009, based on data from GNP+ Global Criminalisation Scan (http://criminalisation.gnpplus.net); media reports collated on criminalhivtransmission.blogspot.com and WHO Europe pilot human rights audit. Top 20 ranking is based on the ratio of rate per year/per HIV population.

Lessons learned: Prosecutions for non-intentional HIV exposure and transmission continue unabated. More than 60 countries have prosecuted HIV exposure or transmission and/or have HIV-specific laws that allow for prosecutions. At least eight countries enacted new HIV-specific laws in 2008/9; new laws are proposed in 15 countries or jurisdictions; 23 countries actively prosecuted PLHIV in 2008/9.

Next steps: PLHIV networks and civil society, in partnership with public sector, donor, multilateral and UN agencies, must invest in understanding the drivers and impact of criminalisation, and work pragmatically with criminal justice system/lawmakers to reduce its harm.

Video produced by www.georgetownmedia.de

This table reflects amended data for Sweden provided by Andreas Berglöf of HIV Sweden after the conference, relegating Sweden from 3rd to 4th. Its laws, including the forced disclosure of HIV-positive status, remain some of the most draconian in the world. Click here to download pdf.

UK: New Guidance for Police Investigating Criminal Transmission of HIV

I'm reproducing below a press release issued yesterday by the National AIDS Trust (NAT) about the new UK (with the exception of Scotland) guidance for police officers investigating allegations of criminal HIV transmission. We'll hear more about the guidance – a world's first – and how it was developed, at the International AIDS Conference in Vienna which begins on Sunday.

Police and HIV sector work together to produce guidance

New guidance has been produced to help police when investigating allegations of criminal transmission of HIV. The guidance provides police officers with basic facts about HIV and sets out advice on how to deal with complaints about reckless (or intentional) transmission of HIV in a fair and sensitive manner.

The new guidance from the Association of Chief Police Officers (ACPO) was developed by a working group which included police officers, representatives of the Crown Prosecution Service and the National Policing Improvement Agency, and the National AIDS Trust. Police across England, Wales and Northern Ireland will be expected to follow new guidance.

Ellie O’Connor, Detective Chief Inspector of the Metropolitan Police, comments;

“Investigations into the criminal transmission of HIV are extremely rare but we know they cause a lot of anxiety for the individuals involved. It is important police officers have an understanding HIV and what to do should someone make a complaint.

In producing this guidance we listened to the concerns of the HIV sector and worked in partnership with them. We strongly encourage all police forces to disseminate this guidance and ensure officers know to access it when a case occurs.”

Deborah Jack, Chief Executive of NAT, comments;

“Criminal investigations into HIV transmission worry many people with HIV, even though they occur only very occasionally. We are pleased that we have been able to work together with the police to produce guidance for their officers. The Association of Chief Police Officers took the issue very seriously.

The resulting guidance sets out a fair way to deal with these investigations that keeps in mind the particular sensitivities of HIV. This new guidance should serve to reduce the number of police investigations and reassure people living with HIV of what they can expect in the unlikely circumstance this occurs.”

For further information about this issue NAT and THT have produced a leaflet for people living with HIV - Prosecutions for HIV Transmission: A guide for people living with HIV in England and Wales.

Under the new guidance for police investigating criminal transmission of HIV, people living with HIV can expect:

• to be treated supportively.
• for their confidentially to be respected.
• an investigation of reckless transmission only to be pursued if a complainant has been infected with HIV
• for the case to be continually discussed with the Crown Prosecution Service to ensure only legitimate complaints are pursued.
• contact with any other individuals relevant to the case to be initiated by trained staff at GUM clinics.
• and uninterrupted access to medication in the event of being taken into custody.

If someone reports to police concerned that they have been exposed to HIV in the past 72 hours they will be referred to an open sexual health clinic or the nearest hospital Accident and Emergency Department to ask for PEP.

For a background study of early police investigations of alleged cases of HIV transmission see Policing Transmission by Terrence Higgins Trust.

Mexico: Laws Criminalising HIV Transmission Are Discriminatory

I'm republishing this excellent article from the Inter Press Service providing the first overview I've ever seen of the individual Mexican state's laws that can be used to prosecute people with HIV for not disclosing before sex. So far there have been no prosecutions.

Mexico: Laws Criminalising HIV Transmission Are Discriminatory

Inter Press Service - June 29, 2010
Emilio Godoy

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MEXICO CITY, Jun 29 (IPS) - In 30 of Mexico's 32 states there are laws penalising transmission of HIV, the AIDS virus, which are regarded by experts as discriminatory and ineffective in curbing the epidemic.

Under the Federal Criminal Code, passing on a sexually transmitted infection (STI) or incurable disease is a crime punishable by up to five years in prison, and this is mirrored in most of the states' legislation, where fines and community service are sometimes included as penalties.

In two states, Guerrero in the southwest and Tamaulipas in the northeast, the laws refer specifically to HIV/AIDS.

The central states of Aguascalientes and San Luis de Potosí are the only ones that do not criminalise the transmission of STIs.

In Guerrero, article 195 of the state penal code establishes prison terms of three months to five years and fines of between 20 and 100 days of the defendant's wages for anyone who is aware they have an STI or HIV and has sexual intercourse with someone who is unaware of their condition.

In Tamaulipas, article 203 provides for sentences of six months to six years, and fines of between 10 and 50 days of the defendant's wages, for the same offence.

"This is an alarming situation. HIV transmission should not be criminalised. It is a discriminatory practice that lends itself to continued justification of attitudes like homophobia," José Aguilar, the national coordinator of the non-governmental Red Democracia y Sexualidad, which focuses on sex education and advocating sexual rights, told IPS.

So far, these laws have not been enforced against HIV-positive people, which is why there have been no moves to repeal them.

"This legislation was intended to curb the HIV/AIDS epidemic; but clearly, it criminalises people living with HIV. It also violates a number of human rights, for instance the rights to privacy and sexual freedom," Mario Juárez, at the department of analysis and proposals of the state National Council to Prevent Discrimination, told IPS.

This country of 107 million people has more than 200,000 people living with HIV -- the second largest infected population in Latin America after Brazil -- and an HIV infection rate of 0.4 percent. In the region, over two million people are living with the virus.

Criminalisation of the transmission of HIV/AIDS is on the agenda for the 18th International AIDS Conference scheduled for Jul. 18-23 in Vienna, Austria. It was also discussed at the 11th National Congress on HIV/AIDS and other Sexually Transmitted Infections, held last November in the southern Mexican state of Chiapas.

And at the 17th International AIDS Conference held in August 2008 in Mexico City, the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations Development Programme (UNDP) presented a global report on the growing criminalisation of HIV transmission.

Mexico's national report for 2008-2009 on the fulfilment of the Declaration of Commitment on HIV/AIDS, adopted by the United Nations General Assembly Special Session (UNGASS) in 2001, does not mention the effects of these laws.

"It's important to have prevention measures and awareness-raising campaigns, and to build a culture of respect. Civil society is always fighting discriminatory measures like these, and always struggling against the current," said Aguilar.

In 2007, UNAIDS and the UNDP supported the publication of a document, "Ten Reasons for Opposing Criminalisation of HIV Exposure or Transmission", drawn up by a coalition of organisations working on HIV/AIDS, human rights and gender issues.

"The push to apply criminal law to HIV exposure and transmission is often driven by the wish to respond to serious concerns about the ongoing rapid spread of HIV in many countries, coupled by what is perceived to be a failure of existing HIV prevention efforts," the document says.

The 10 reasons include the ineffectiveness of such laws and their discriminatory and stigmatising nature, as well as the view that they "endanger and further oppress women."

In Mexico the sex ratio among people living with HIV was 6.6 men for each woman in 1995, a proportion that dropped to 5.1 in 1996 and 3.6 in 2008, before increasing to four men for every woman in 2009.

Between 1995 and 2009, there were 640 homophobia-related murders, 143 of which were committed in the Mexican capital, according to the Federal District Commission on Human Rights.

"It's an issue that just hasn't been raised forcefully enough, and so the state has not reacted. Civil society organisations should take up the question and air it in public," said Juárez, in regard to the laws and their possible consequences.

But so far there have been no legislative initiatives to eliminate the laws criminalising HIV transmission in Mexico.

The Global Fund to Fight AIDS, Tuberculosis and Malaria has approved a grant of 70 million dollars for a Mexican project aimed at high risk groups such as men who have sex with men, sex workers and intravenous drug users.

The Global Fund, based in Geneva, Switzerland, is a public-private partnership of international donors, the governments of the Group of Eight most powerful countries, and non-governmental organisations, devoted to preventing and treating AIDS, tuberculosis and malaria in needy countries.

Global: UN Global Commission on HIV and the Law launched, US refuses entry to TAG member

Yesterday, UNDP and UNAIDS launched the new Global Commission on HIV and the Law, previously mentioned here.

The Commission’s aim is to increase understanding of the impact of the legal environment on national HIV responses. Its aim is to focus on how laws and law enforcement can support, rather than block, effective HIV responses.

Although most reports have simply reworked parts of the UNDP or UNAIDS press releases, there is a lot more detail available from the UNDP website, including links to the five page information note and detailed biographies of the Commissioners and members of the Technical Advisory Group (TAG).

The Global Commission on HIV and the Law brings together world-renowned public leaders from many walks of life and regions. Experts on law, public health, human rights, and HIV will support the Commissions’ work. Commissioners will gather and share evidence about the extent of the impact of law and law enforcement on the lives of people living with HIV and those most vulnerable to HIV. They will make recommendations on how the law can better support universal access to HIV prevention, treatment, care and support. Regional hearings, a key innovation, will provide a space in which those most directly affected by HIV-related laws can share their experiences with policy makers. This direct interaction is critical. It has long been recognized that the law is a critical part of any HIV response, whether it be formal or traditional law, law enforcement or access to justice. All of these can help determine whether people living with or affected by HIV can access services, protect themselves from HIV, and live fulfilling lives grounded in human dignity.

The list of Commissioners is extremely impressive and includes two former presidents – Fernando Henrique Cardoso, former President of Brazil and Festus Gontebanye Mogae, former President of Botswana – and several currently elected politicans – US Congresswoman Barbara Lee, New Zealand Representative Charles Chauvel and Hon. Dame Carol Kidu, MP in Papua New Guinea. It also includes the two most respected judges in the field of HIV and the law – Australia's Hon. Michael Kirby and South Africa's Justice Edwin Cameron.

I'm also proud to note that many members of the TAG are friends and colleagues including Aziza Ahmed, Scott Burris, Mandeep Dhaliwal, Richard Elliott, Kevin Moody, Susan Timberlake, and Matthew Weait.

Last week (17-18 June), the TAG held its first meeting at the UNDP building in New York. I hear it was amazingly interesting and productive. However, one member of the TAG, Cheryl Overs, was missing. This tireless and passionate advocate on behalf of sex workers, who is currently Senior Research Fellow in the Michael Kirby Centre for Public Health and Human Rights at Monash University, was apparently denied entry by US immigration because she deemed a security risk due to her association with sex work. Oh, the irony!

The Commission's findings and recommendations will be announced in December 2011, in time for AIDS 2012 due to be held in Washington DC.

Uzbekistan: Negligent liability now added to HIV-specific criminal law

The Uzbek government has amended article 113 of Uzbekistan's Criminal Code to allow for easier prosecution for medical negliglence resulting in HIV transmission, according to a report on eurasianet.org.

Article 113, passed in 1999 and enacted in 2001, criminalises both knowing HIV exposure and transmission, both of which are punishable by imprisonment from eight to ten years. According to the report it had

previously provided punishment of fines or arrest from 6 months to 3 years for "deliberately endangering another person by infecting them with a venereal disease or AIDS." The new law specifies criminal liability of arrest for 6 months or imprisonment up to 5 years for such infection "as a result of non-fulfillment or negligence of professional duties". This includes failing to keep instruments sterile, and failure to follow proper procedures for blood transfusions and other medical procedures.

The amendment to the law was likely inspired by the trial of 13 doctors and medical workers whose negligence allegedly resulted in 147 children in the Namangan and Namangan regions becoming HIV-positive.

Fourteen of the children later died. Prosecutors found that doctors had failed to sterilize catheters, had reused disposable syringes and needles for taking blood samples, and also had falsified sterilization records and later destroyed evidence. Twelve were sentenced to prison for 5-8 years. Nine other medical employees from district hospitals in Namagan region were investigated, but the government has not made any information available and ferghana.ru could not learn their fate. This year, another group of doctors in Andijan were also charged with infecting patients with HIV.

Uzbekistan is not known for its HIV-friendly policies. Last summer, HIV educator and advocate, Maxim Popov, was jailed for seven years allegedly for mismanagment of donor's funds but ostensibly for "corruption of youth" for "possessing and distributing HIV/AIDS-prevention publications that were deemed offensive to Uzbek sensibilities."

Last month, Uzbek President Karimov's daughter, Gulnara Karimova, who is also the Uzbek ambassador to Spain, attended a fundraiser in Cannes sponsored by the Foundation for AIDS Research (amfAR).

Robert Frost, executive directof of amfAR, said he had raised Popov's case with Karimova [and] she had promised to "look into the situation," but nothing further has been heard from Karimova.

Ghana: Calls for new HIV-specific criminal law heeded by AIDS Commission

The Ghana AIDS Commission is undertaking a legal audit to establish whether there is a need for a new HIV-specific criminal law against "deliberate" transmission, according to a report from Ghanian radio station, Joy.

According to the report, some members of a PLHIV self-help group, Models of Hope, have claimed that the phenomenon of deliberate transmission is "very prevalent" in Ghana.

Reports say people get affected by the virus through another person’s premeditated action. Affected persons who have their conditions alleviated by antiretroviral drugs are said to deliberately spread the virus to unsuspecting persons by having unprotected sex with them. Some even go to radio stations to boast of their escapade, thus causing panic in those who have engaged in, most often, unprotected sex with them.

Dr Angela El-Adas, Director General of the Commission, told the radio station that "this legal audit will tell us what we have in terms of the legislative instruments that can enforce any action that we take or can back an action that we take", but that the Commission is also mindful of the human rights of people living with HIV.

In 2006, the Ghana Chapter of the Society For Women Against AIDS In Africa (SWAA) began lobbying policymakers and parliamentarians to adopt a version the AWARE-HIV/AIDS model law. At the same time Ministry of Justice and the Attorney-General's Office initiated a process to incorporate' wilful transmission' into the Criminal Code.

It was thought that the process has stalled by 2008, but since most of their neighbours already have passed HIV-specific criminal legislation based on this horrendous model law, it is not surprising that Ghana is following this path. Twelve other countries in Western Africa have passed their own adaptations of law since 2005 and at least 25 African countries now have HIV-specific criminal laws.

Global: UNAIDS/UNDP supports Swiss statement, announces new Global Commission on HIV and the Law

Following on from yesterday's post about the report by the UN Special Rapporteur on the Human Right to Health, on the impact of criminalisation, UNAIDS and UNDP have issued a statement welcoming the report. (Click here for the pdf: full text below)

One of the most intriguing things about this statement is its recognition that antiretroviral therapy significantly reduces the risk of infection on an individual level, something UNAIDS has not previously supported.

It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.

The footnote following the phrase "greater impacts for individuals" states:

The Swiss National AIDS Commission (EKAF) has stated that “an HIV-infected person on antiretroviral therapy with completely suppressed viraemia (‘effective ART’) is not sexually infectious, i.e. cannot transmit HIV through sexual contact.” However, the Commission qualifies its statement, noting that it is considered valid only so long as: (a) the person adheres to antiretroviral therapy, the effects of which must be evaluated regularly by the treating physician, and (b) the viral load has been suppressed (below 40 copies/ml) for at least six months, and (c) there are no other sexually transmitted infections. See P Vernazza et al (2008), “Les personnes séropositives ne souffrant d’aucune autre MST et suivant un traitment antirétroviral efficace ne transmettent pas le VIH par voie sexuelle”, Bulletin des médecins suisses 89:165-169. Available on-line at http://www.saez.ch/pdf_f/2008/2008-05/2008-05-089.PDF

This contrasts with the extremely non-committal statement UNAIDS made jointly with WHO immediately after the Swiss Statement.

But that's all water under the bridge, I guess. Yes, any laws that prevent people from knowing their status and accessing treatment are bad. But we must fight to ensure that treatment's impact on infectiousness is always a secondary factor to the individual's choice regarding whether and when to start treatment. Treatment must be treatment first, prevention second. That's a big part of the work I'm currently doing for GNP+ and UNAIDS producing a new framework for positive prevention known as Positive Health, Dignity and Prevention.

Another significant part of the UNAIDS/UNDP statement is the first public announcement of a new Global Commission on HIV and the Law (which had been called the International Commission on HIV and Law or ICAL in documents I'd previously seen) "which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations."

The Commission will be officially launched later this month.

Statement by the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations Development Programme (UNDP)

14th Session the Human Rights Council

Agenda Item 3: Promotion and protection of all human rights, civil,
political, economic, social and cultural rights, including the right to
development

7 June 2010
Geneva


Mr President, distinguished delegates, ladies and gentlemen,

The UNAIDS Secretariat and UNDP thank the Human Rights Council for the opportunity to speak under this agenda item. As this Council knows, for almost 30 years, the world has sought the most effective response to the HIV epidemic. This challenge has repeatedly shown that a human rights-based approach to HIV is the most effective approach to HIV.

This fact has been long recognized by the Commission on Human Rights, this Council and by Member States. This is because human rights and legal protections are essential to enable people to get the HIV information and services they need, to avoid infection, and if HIV positive to disclose their status and get treatment. It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.

Many States continue to criminalize sexual minorities, people who use drugs, people
who engage in sex work, as well as people living with HIV. The result is that thousands of people fear or are unable to get tested for HIV, to disclose their HIV status, to access HIV prevention, treatment and care. This puts both these groups and the larger public at risk. Under these circumstances, universal access to HIV prevention, treatment, care and support will not be realised; and we will not achieve many of the Millennium Development Goals.

Because of this, the Executive Director of UNAIDS, Michel Sidibé, has made one of the corporate priorities of UNAIDS to support countries to “remove punitive laws, policies, practices, stigma and discrimination that block effective AIDS responses.”

For these reasons, the UNAIDS Secretariat and UNDP welcome the report of the Special Rapportueur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. We hope it will help to generate constructive debate, and catalyse change toward a more rights-based and effective AIDS response.

The report of the Special Rapporteur underlines how the criminal law, when misused, can and does have a very negative impact on the right to health. When the criminal law is applied to adults engaging in private consensual sexual behavior – whether in the context of same-sex sexual orientation or in the context of the exchange of money for sex – it also violates the rights to privacy and liberty and acts as a major impediment to HIV prevention and treatment. Where overly broad criminal laws are applied to people living with HIV, the impact is in direct contradiction to public health efforts to encourage people to come forward to get on treatment and practice safe sex, and reduce HIV transmission in the context of drug use.

The UNAIDS Secretariat and UNDP are fully aware that, in many societies, these issues are the subject of much social, cultural and religious debate. However, the UNAIDS Secretariat and UNDP are concerned that criminalization of aspects of private, consensual adult sexual conduct singles out particular groups for invidious treatment, undermines individual and public health, and transgresses various international human rights norms. Thus, for public health and human rights reasons, the UNAIDS Executive Director and the United Nations Secretary General have called for the removal of punitive laws, policies and practices that hamper the AIDS response. Successful AIDS responses do not punish people, they protect them.

UNDP, on behalf of UNAIDS, is launching the Global Commission on HIV and the Law, which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations. The UNAIDS Secretariat and UNDP greatly hope that this Commission will help States and civil society to better use law, law enforcement and access to justice to protect all people from HIV and its impact, as well as from human rights violations in the context of HIV. We look forward to bring to the Council the findings of the Commission at the end of 2011.

Thank you.

Global: UN 'Criminalisation undermines the Human Right to Health'

One of the most significant documents produced so far on the criminalisation of HIV non-disclosure, exposure and transmission was published today by the United Nations.

It is a report by Anand Grover, the UN Special Rapporteur on the Human Right to Health, specifically the right of everyone to enjoy the highest attainable standard of physical and mental health.

His report highlights the many human rights arguments against the use of the criminal law to prosecute anything except the intentional (i.e. proved beyond a reasonable doubt in a court of law that transmission was intended and malicious).

It begins with a very forceful statement.

... the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health. The criminalization of HIV transmission, or behaviours around transmission, is generally recognized as counterproductive, and should be reconsidered in the context of any comprehensive HIV/AIDS response framework.

It then examines the various ways that HIV transmission has been criminalised around the globe before examining the effect on the right to health. It ends with a bang, too.

Informed individuals take steps to prevent HIV transmission irrespective of criminal laws around transmission, and there is little evidence that specific laws criminalizing HIV transmission deter or modify the behaviour of individuals. With little benefit demonstrated in terms of achieving the aims of the criminal law or public health, and a corresponding risk of alienation, stigmatization and fear, it is difficult to see why the criminalization of HIV transmission is justified at all. Laws that are unnecessarily punitive will undermine any public health response to HIV, rather than assist it.

The entire document also includes an examination on the criminalisation of same-sex behaviour, sexual orientation and gender identify as well as sex work, and can be downloaded in full from the Office of the High Commissioner for Human Rights.

For your convenience, I have included pretty much the entire section on the criminalisation of non-disclosure, exposure and transmission below, complete with paragraph numbers, for easy quoting.

A webcast of Mr Grover's 13 minute speech to the UN General Assembly can be found here. Disappointingly, just one minute is dedicated to the criminalisation of non-disclosure, exposure and transmission (at 2:24).

Nevertheless, this report, and Mr Grover's speech, is significant in the history of criminalisation, and should be considered a major victory for anti-criminalisation advocates around the world.

Now, we just have to remind our goverments and policymakers to heed his words...

United Nations General Assembly

Human Rights Council

Fourteenth Session

A/HRC/14/20

27 April 2010

Agenda item 3

Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover.

HIV transmission

51. The Special Rapporteur notes that the criminalization of HIV transmission has formed a part of the global response to the HIV/AIDS crisis since its inception. Unfortunately, the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health. The criminalization of HIV transmission, or behaviours around transmission, is generally recognized as counterproductive, and should be reconsidered in the context of any comprehensive HIV/AIDS response framework.

Effects of criminalization on the right to health

No impact on behaviour change or HIV spread

62. The Special Rapporteur notes that criminal laws that explicitly regulate the sexual conduct of people living with HIV have not been shown to significantly impact on sexual conduct, nor do they have a normative effect in moderating risk behaviours. Criminal law does not influence the circumstances in which most HIV transmission occurs. In many regions, the majority of people living with HIV are unaware of their positive status and most cases of HIV transmission occur through consensual sex. Private sexual conduct invariably persists in the face of possible prosecution, but when prosecution actually occurs, these behaviours are driven underground, providing less opportunity for regulation and inhibiting access to preventive activities, diagnostic services, treatment and support.

Undermining existing public health efforts

63. Criminalization of HIV transmission or exposure places legal responsibility for HIV prevention exclusively on those already living with HIV, undermining the notion of shared responsibility between sexual partners, and potentially creating a false sense of security amongst those who are HIV-negative.86 Criminalization also has the potential to discourage HIV testing, which is a core component of successful HIV/AIDS health initiatives. An additional barrier to access to services could be manifested through increased distrust in relationships with health professionals and researchers, impeding the provision of quality care and research, as people may fear that information regarding their HIV status will be used against them in a criminal case or otherwise. As the prevalence of high-risk sexual behaviour is significantly lower in individuals aware of their seropositive status, any laws that discourage testing and diagnosis have the potential to increase the prevalence of risky sexual practices and HIV transmission.

Disproportionate impact on vulnerable communities

64. In jurisdictions where HIV transmissions have been prosecuted, of the very few cases that are prosecuted out of the many infections that occur each year, the majority have been noted to involve defendants in vulnerable social and economic positions. Although laws criminalizing HIV transmission and exposure were, on occasion, enacted to provide women with greater protection, applying these laws broadly has also resulted in women being disproportionately affected. For instance, a woman was prosecuted under section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 for having unprotected sex while HIV-positive, despite HIV not even being transmitted to the “victim” in question.

65. Women often learn they are HIV-positive before their male partners because they are more likely to seek access to health services and are consequently blamed for introducing the infection into communities. For many women, it is also difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences. Women may therefore face prosecution as a result of their failure to disclose, despite having valid reasons for non-disclosure. These laws do not provide women with any additional protection against violence or assurance of their rights to sexual decision-making and safety, and do not address the underlying socioeconomic factors that increase women’s vulnerability.

Criminalization of mother-to-child transmission

66. Some countries have enacted laws that criminalize mother-to-child transmission explicitly (see paragraph 54 above) or implicitly due to overly broad drafting of the law. Where the right to access to appropriate health services (such as comprehensive prevention of mother-to-child transmission services and safe breastfeeding alternatives) is not ensured, women are simply unable to take necessary precautions to prevent transmission, which could place them at risk of criminal liability. [...]

Stigma, discrimination and violence

68. Stigma represents a major impediment to the implementation of successful interventions in respect of HIV/AIDS. Applying criminal law to HIV exposure or transmission can reinforce the stereotype that people living with HIV are immoral and irresponsible, further entrenching HIV-related stigma. People living with HIV/AIDS may, in turn, internalize the negative responses of others. This self-stigmatization affects the sense of pride and worth of individuals, which can lead to depression and self-imposed withdrawal, hampering access to HIV/AIDS treatment and interventions. In this way, criminalization impedes the right to health by constructing barriers to access by creating an environment in which individuals feel as if they are not deserving of treatment.

69. Discrimination against those affected by HIV/AIDS is one of the manifestations of stigma. For those living with HIV, actual and feared discrimination acts as a barrier to HIV-specific health services, including testing, anti-retroviral therapy and services in the prevention of mother-to-child transmission, in addition to broader health services.

70. The Special Rapporteur notes that individuals living with HIV have been convicted of crimes that did not actually inflict physical harm, damage any property or otherwise cause injury. Disproportionate severity in sentencing of those convicted of “HIV crimes” has become evident in a number of cases, the inference being that the defendants’ HIV status played a significant role in conviction and imprisonment. Criminal prosecutions, and the publicity stemming from them, have been found to increase stigmatization and have been perceived by people living with HIV as undermining public health efforts encouraging safer sex.

71. The criminalization of HIV transmission also increases the risk of violence directed towards affected individuals, particularly women. HIV-positive women are 10 times more likely to experience violence and abuse than women who are HIV-negative.

Right-to-health approach

72. The Special Rapporteur emphasizes that any domestic legislation concerning HIV transmission should be based on a right-to-health approach; that is, States must comply with their obligations to respect, protect and fulfil the right to health through the enactment of such legislation. Most relevantly, the obligation to protect requires States to take measures to protect all vulnerable or marginalized groups of society, and the obligation to fulfil similarly requires steps to assist individuals and communities to enjoy the right to health – particularly those who are unable to realize the right themselves.

73. Any law concerning HIV transmission should therefore be directed at issues around public infrastructure, access to medicines, information campaigns concerning HIV/AIDS and so forth. The criminalization of HIV transmission should not form the mainstay of a national HIV/AIDS response, and its necessity is questionable in any event. Informed individuals take steps to prevent HIV transmission irrespective of criminal laws around transmission, and there is little evidence that specific laws criminalizing HIV transmission deter or modify the behaviour of individuals. With little benefit demonstrated in terms of achieving the aims of the criminal law or public health, and a corresponding risk of alienation, stigmatization and fear, it is difficult to see why the criminalization of HIV transmission is justified at all. Laws that are unnecessarily punitive will undermine any public health response to HIV, rather than assist it.

74. As such, criminalization should be considered permissible only in cases involving intentional, malicious transmission. The criminalization of any lesser mens rea is not only inappropriate, but also it is counterproductive in the struggle against the spread of HIV. In the view of UNAIDS:

Criminal law should not be applied where there is no significant risk of transmission or where the person:

• Did not know that he/she was HIV-positive

• Did not understand how HIV is transmitted

• Disclosed his/her HIV-positive status to the person at risk (or honestly believed the other person was aware of his/her status through some other means)

• Did not disclose his/her HIV-positive status because of fear of violence or other serious negative consequences

• Took reasonable measures to reduce risk of transmission, such as practising safer sex through using a condom or other precautions to avoid higher risk acts

• Previously agreed on a level of mutually acceptable risk with the other person

75. Finally, domestic laws prohibiting the deliberate spread of any disease or assault, or laws concerning the age of consent, adequately cover intentional transmission of HIV should the need arise to prosecute cases where this has occurred. The use of these preexisting laws provides a legal safeguard to potential victims, without unnecessarily stigmatizing and further marginalizing those affected by HIV within the jurisdiction. States should, in addition to using pre-existing laws, issue guidelines to ensure that these laws are only utilized in cases of intentional transmission and that the relevant mens rea is to be established beyond a reasonable doubt.

Recommendations

76. The Special Rapporteur calls upon States:

[..]

(c) To immediately repeal laws criminalizing the unintentional transmission of or exposure to HIV, and to reconsider the use of specific laws criminalizing intentional transmission of HIV, as domestic laws of the majority of States already contain provisions which allow for prosecution of these exceptional cases.