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US: Georgia police charges man of reckless conduct by an HIV-infected person for spitting at officer

Kingsland man arrested after HIV–related incident in April
June 27, 2017

Kingsland man arrested after HIV-related incident in April

Denzell Freeman had active warrant out for his arrest

By Michelle Ganley – Online Editor

CAMDEN COUNTY, Ga. – Deputies have charged a man who had an active warrant out for his arrest after an HIV-related incident in late April at his parents’ house, the Camden County Sheriff’s Office said.

Denzell Freeman, of Kingsland, was booked in the Camden County jail on Saturday night. He was a passenger in a car that was pulled over when deputies ran his ID and learned of the warrant.

Freeman is accused of reckless conduct by an HIV-infected person.

Just before 2:30 a.m. April 22, officers with the Kingsland Police Department were called to Freeman’s parents’ home regarding a disturbance. When police arrived, Freeman barricaded himself in a bedroom, investigators said.

Officers eventually made their way inside the room, where they found Freeman unresponsive on the bed, covered in blood across his chest and arm, police said.

Freeman’s parents told police that he was HIV positive, which Freeman admitted when he started responding to officers.

When emergency officials arrived, Freeman got physically aggressive and had to be restrained, police said.

That’s when Freeman spit in the eye of one of the officers restraining him, authorities said.

Because of his injuries, mental state and medical issues at the time, Freeman was not arrested, but the warrant was written.

Freeman, who knowingly has HIV, purposely spat into the eye of the sergeant, according to an arrest warrant from the Camden County Sheriff’s Office.

[Update] Jamaica: Jamaican man extradited back to Canada to face charges of HIV non-disclosure

Extradited!
June 23, 2017

Extradited!

HIV-positive J’can to answer to multiple sexual assault charges in Canada

Friday, June 23, 2017

A Jamaican wanted in Canada on 12 counts of sexual assault, following allegations that he engaged in sexual intercourse with several women without disclosing his HIV status, was yesterday extradited after he lost his long battle to quash his extradition.

George Flowers, 47, of a Westmoreland address, left the Norman Manley International Airport in Kingston, yesterday in the company of law enforcement officers for Canada, where he is to face the court in respect to four women, who are claiming that he knew he was infected and had sex with them without telling them that he had HIV.

According to information from the Office of the Director of Public Prosecutions (ODPP): “Three of the four complainants subsequently contracted HIV, and all complainants swore in affidavits that they would not have had sexual intercourse with him had they known he was HIV positive.”

The Globe and Mail website in an article in October 2012, reported the Toronto police as saying that Flowers worked in Toronto in the entertainment business and met the women in bars and other venues.

“It’s alleged he has known since 1996 that he carries the HIV virus, which causes AIDS, but did not disclose his status,” the Globe and Mail report said.

“The Criminal Code specifies that anyone who is HIV positive must apprise their sexual partners, and charges can be laid regardless of whether the infection is transmitted,” the newspaper added.

The Canadian Government had requested Flowers’ extradition from 2013, when he fled to the island.

However, after he was arrested in August 2015, Flowers sought to challenge an order that was made by then Resident Magistrate Simone Wolfe-Reece for him to be committed to custody pending his extradition by applying for his release by way of a habeas corpus application in the Supreme Court.

However, the application for release was dismissed on June 30, 2016, but he later filed a notice of appeal.

In response, the ODPP then filed an application to strike out the notice of appeal and was supported by the Attorney General’s Chambers, which was upheld by the Court of Appeal on November 2016.

But Flowers, in a final attempt, filed an application in January, contending that the extradition warrant that was signed by Justice Minister Delroy Chuck on November 30, was flawed and invalid.

His defence team had argued that the warrant signed by Chuck on November 30 last year was invalid because it was signed while Flowers had a matter before the court. Furthermore, they contended that the warrant was no longer valid as the Extradition Act stipulates that a warrant expires after one month. However, the Court of Appeal later struck out the matter.

Flowers was represented by attorney Don Foote.

Published in The Jamaica Observer on June 23, 2017

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Court Turns Down Appeal Filed By Man Challenging Extradition To Canada

The attorney for George Flowers, the Jamaican man challenging his extradition to Canada to answer to sex-related crimes, say he’s meeting with his client to determine the next move after the Court of Appeal turned down his application.

Flowers had applied to the appeals court for an extension of time for his appeal to be heard.

However, the application was refused when the matter came before the court yesterday.

John Thompson told The Gleaner/Power 106 News Centre that the appeals court ruled that the grounds of appeal were not filed within the prescribed time in law and turned down the application.

The court ruling means that law enforcement can execute the extradition warrant on Flowers, who has been in custody for more than two years.

A new warrant was signed on November 30 by Justice Minister, Delroy Chuck.

Thompson had expressed concern that Chuck signed the warrant before the application was heard.

Flowers is wanted in Canada on several counts of aggravated sexual assault, allegedly committed between 1997 and 2011.

He’s accused of having sexual intercourse without disclosing his HIV status.

Complaints have been made by four women including his wife.

Flowers was ordered extradited by the Corporate Area Resident Magistrate’s Court in August 2014 and was arrested in Jamaica on June 4 that same year.

Since then, he has been fighting his extradition.

Published in The Gleaner on January 31, 2017

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Published in Loop on Jan 21, 2017

Jamaican man continues his fight against extradition to Canada to face HIV non-disclosure allegations

A forty-seven-year-old Jamaican man, who was ordered extradited to Canada in 2014 to stand trial for allegedly infecting several females with HIV is fighting the extradition in the Court of Appeal.

The man identified as George Flowers, is facing 12 counts of aggravated sexual assault, should he be extradited, Flowers was on Friday, January 21, given the go ahead for his appeal to be heard on January 30.

However, his lawyer Don Foote is expressing concern that while Flower’s appeal was pending the Minister of Justice had signed an order dated November 30, 2016 for his extradition.

This means that Flowers may be removed from the country at any time.

He is accused of engaging in unprotected sex with four women without disclosing to them that he was HIV positive.

Three of the women are now HIV positive and the women said if they knew he was HIV positive, they would not have been intimate with him.

Flowers took his case to the Supreme Court to have his extradition order set aside but was not successful.

He then filed a notice of appeal but it was struck out last year because he did not pursue the appeal. He later filed another appeal.

In the appeal filed on November 25 last year, Flowers is contending that he should be released because Jamaica does not have a corresponding law for the offense for which he is being extradited.

He also pointed out in the appeal that contacting HIV during consensual sex with a person who did not disclose his or her status does not constitute the offense of inflicting assault occasioning grievous bodily harm.

Flowers is claiming in his appeal that if he was forced to disclose his HIV status to the women his Constitutional right to privacy would have been breached.

Lawyers from the Office of the Director of Public Prosecutions claim Flowers brought bodily harm to the women and under Jamaican Law the Offenses Against the Person Act applies.

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Original article published in The Jamaica Observer on Nov. 8, 2016

Extradition approved

Court rules against J’can man wanted in Canada on sex charges
Friday, November 18, 2016

A Jamaican man who is wanted by the Canadian Government for sex crimes lost his long battle to defeat an extradition warrant on Wednesday when the Court of Appeal struck out his notice of appeal.

The Office of the Director of Public Prosecutions (ODPP) yesterday said that George Flowers will now be extradited to Canada where he is wanted on 12 counts of aggravated sexual assault.

A news release from the ODPP said that Flowers has been accused of engaging in unprotected sexual intercourse with four women knowing that he was HIV-positive and without informing them of his HIV-positive status.

“Three of the four complainants subsequently contracted HIV, and all complainants swore in affidavits that they would not have had sexual intercourse with him had they known he was HIV-positive,” the ODPP said.

 According to the State prosecutor, on March 21, 2013, the Government of Canada asked the Jamaican Government to extradite Flowers, who had fled to Jamaica.

“The then Minister of Justice Mark Golding, on June 3, 2013, issued the authority to proceed in respect of three counts. The Government of Canada subsequently submitted a supplemental extradition request for a single count of aggravated sexual assault against George Flowers, to which the minister issued authority to proceed on September 9, 2013,” the ODPP said, adding that an extradition warrant was then issued for Flowers’ arrest.

An October 2012 story on the Globe and Mail website reported Toronto police as saying that Flowers worked in Toronto in the entertainment business and met the women in bars and other venues.

“It’s alleged he has known since 1996 that he carries the HIV virus, which causes AIDS, but did not disclose his status,” the Globe and Mail report said.

“The Criminal Code specifies that anyone who is HIV-positive must apprise their sexual partners, and charges can be laid regardless of whether the infection is transmitted,” the newspaper added.

In its release yesterday, the ODPP said Flowers was arrested and committal proceedings were conducted before St Andrew Resident Magistrate Simone Wolfe-Reece, who on August 22, 2015 ordered that Flowers be committed to custody pending his extradition to Canada.

But Flowers, the ODPP said, challenged the order of committal by applying for his release by way of a habeas corpus application, which was heard by the Full Court of the Supreme Court on January 11 and 12, 2016.

“On June 30, 2016 the Full Court dismissed his application for habeas corpus and ordered that he be extradited to Canada,” the ODPP said.

However, on July 22, 2016 Flowers filed a notice of appeal. But the ODPP filed an application to strike out the notice of appeal and was supported by the Attorney General’s Chambers.

“On November 16, 2016 the Court of Appeal upheld the DPP’s application and struck out George Flowers’ notice of appeal, paving the way for him to be extradited to Canada,” the ODPP said.

Flowers was represented by attorney Don Foote, the Government of Canada was represented by the ODPP through Jeremy Taylor, senior deputy director of public prosecutions; and the Government of Jamaica was represented by the Attorney General’s Chambers.

Published in The Jamaica Observer on Nov. 8, 2016

[Update] Czech Republic: Czech national deported from Thailand sentenced to 11.5 years in prison for alleged HIV transmission

Czech man sent to prison for spreading HIV knowingly
June 23, 2017

Czech man sent to prison for spreading HIV knowingly

ČTK |
23 JUNE 2017

Usti nad Labem, North Bohemia, June 22 (CTK) – A regional court sentenced Czech Zdenek Pfeifer to 11.5 years in prison for spreading HIV knowingly today.

The verdict is not valid since he said he would appeal it.

The man was found guilty of causing bodily harm, spreading an infectious disease and other crimes.

Besides, Pfeifer was sentenced to cover the damage to some of his victims and to the health insurance company.

According to the indictment, Pfeifer learnt that he was HIV positive in September 2013. In the following two years, he had sexual contacts with some 20 men without telling them about the HIV virus. He infected two of them, one of whom was only 14 years then. He paid him for sex.

The age limit for legal sex is 15 years in the Czech Republic

Pfeifer denied having sex with the boy when he was under 15. He also claimed he had told all his sexual partners about being HIV-positive. However, the court did not believe him.

Pfeifer, who originally faced up to 12 years in prison, is to serve the sentence in a top security prison.

The court imposed a higher sentence on him than the state attorney proposed due to aggravating circumstances.

Three men with whom Pfeifer had sex got infected with HIV. However, in the third case it cannot be proved that it was Pfeifer who infected the man as he had sex with several other partners.

Some of Pfeifer’s sexual partners joined the court proceedings and demanded compensation. The youngest one, who is still juvenile, demanded 1.1 million crowns, while others tens of thousands of crowns each. The court approved the compensation.

Pfeifer must also cover more than 600,000 crowns to the General Health Insurance Company (VZP) for its care of the victims infected with HIV.

Pfeifer left for Thailand when the police were investigating him. He denied having fled. Detectives were searching for him from January 2016. A year later, he was detained on Phuket Island in Thailand. The local authorities deported him to the Czech Republic immediately.

Pfeifer has been in custody since January for fear that he might escape and continue to commit criminal activities.

Published in The Prague Daily Monitor on June 23, 2017

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Czech charged with spreading HIV faces decade in jail

PRAGUE – A Czech man is facing up to 12 years in jail on charges of knowingly infecting nearly two dozen people with HIV, prosecutors said Wednesday, after flying him home from Thailand where he was arrested.

Zdenek Pfeifer, 49, was questioned after more than a year on the run over eight offences including spreading a contagious disease, said Vladimir Jan, a spokesman for the prosecutor’s office.

Czech police say he knew since 2013 that he had HIV but had sex with at least 23 men across the Czech Republic without informing them, infecting at least three including a 13-year-old boy.

Officers believe the number of victims could actually be substantially higher. It was not immediately clear whether he would also face statutory rape charges.

After being flown from Thailand guarded by five Czech police officers, Pfeifer was put in provisional detention in the northwestern town of Usti nad Labem.

“The accused could face five to 12 years in prison,” Jan said, quoted by the CTK news agency.

“The start date for his trial has not been set yet,” Usti nad Laben regional court spokeswoman Marcela Trejbalova told AFP.

Pfeifer first entered Thailand in June 2015 on a tourist visa which ran out two months later.

He was detained at his apartment on the resort island of Phuket earlier this month after reports warning of his presence in the popular holiday nation went viral on Thai social media.

Nathathorn Prousoontorn of Thailand’s immigration police told reporters that no complaints had been filed in the Asian nation alleging that Pfeifer had knowingly infected anyone there.

Published in The Nation on Jan 24, 2017

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‘HIV-spreader’ Czech deported

The Immigration Police Bureau (IPB) on Tuesday deported to his country of origin Zdenek Pfeifer, 50, a Czech national wanted by Interpol for allegedly spreading HIV to various sexual partners and sexually abusing a minor in his home country.

Mr Pfeifer was detained last Tuesday in Phuket and charged with overstaying his visa, which expired on Aug 4, 2015, said IPB chief Nathathorn Prousoontorn.

A local court ruled that the Czech man had to be deported.

Mr Pfeifer was also blacklisted and banned from re-entering Thailand, said Pol Lt Gen Nathathorn.

Although Mr Pfeifer has admitted he slept with several sexual partners while in Thailand, none of them had lodged a complaint with police seeking legal action against the man for spreading HIV, so no investigation has been carried out.

He told police he found his sexual partners at popular entertainment venues in Phuket, Krabi, Chiang Mai and Pattaya, said Pol Lt Gen Nathathorn.

The IPB Tuesday morning handed Mr Pfeifer over to six Czech officials sent to Thailand to arrange the deportation at the IPB’s request.

The IPB submitted the request to Czech authorities after Deputy Prime Minister Prawit Wongsuwon raised concerns over possible difficulties that might arise while escorting Mr Pfeifer, who is a heavily built man, on a long trip back to the Czech Republic, Pol Lt Gen Nathathorn said. The deportation had been delayed because there is no direct flights between Thailand and the Czech Republic. Some airlines providing connecting flights had refused to take the suspect citing safety concerns, said Pol Lt Gen Nathathorn.

The six Czech officials and Mr Pfeifer are believed to have left Suvarnabhumi airport Tuesday afternoon on a flight to Frankfurt where they were to change planes and travel onward to the Czech Republic.

Published in the Bangkok Post on January 25, 2017

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Thailand: Czech man living with HIV arrested in Phuket for alleged HIV transmission

Police early Wednesday said they have arrested a Czech man suspected of spreading HIV after a tip by a Phuket resident.

Officers said Zdenek Pfeifer, 52, was apprehended in the South, although the initial manhunt for the man had been in the North.

Mr Pfeifer, under a red notice by Interpol, is wanted in the Czech Republic for sexual offences with minors, including intentional passing his HIV infection.

Police had earlier said Mr Pfeifer was believed to have passed his infection to “several” Thai male and female partners.

Khaosod newspaper reported early Wednesday they had picked up the suspect while on routine patrol in Phuket.

Police said that while investigating in the parking lot of the Tesco Lotus department store in Phuket town, a man resembling Mr Pfeifer’s wanted poster drove a motorcycle into the lot.

A policeman searching the area found the man inside the store. He called for backup, but found he had to “urgently use the restroom”, and the suspect fled when he was inside.

Officers found him again within hours at a house he had rented.

EARLIER REPORT

Police in the North are searching for a Czech man, an over-stayer believed to be infected with HIV and wanted for sexual offences against minors in his own country.

The Royal Thai Police Office recently issued an urgent order asking Provincial Police Region 5 to track down Zdenek Pfeifer, 52, a national of the Czech Republic.

Mr Pfeifer, named in a red notice issued by Interpol, is said to be HIV-infected and to have passed the infection on to several male and female partners in Chiang Mai and nearby provinces, Thai media reported on Tuesday.

Pol Maj Gen Pongdet Prommichit, deputy chief of Provincial Police Region 5, on Tuesday called a meeting with police in eight northern provinces under his office and instructed them to immediately find and arrest the Czech suspect.

Pol Gen Wut Liptapanlop, deputy national police chief, had asked police across the country to track down Mr Pfeifer, suspect No 26 on the arrest warrant issued by the Czech court, said Pol Maj Gen Pongdet.

The man is regarded as dangerous and believed to have spread HIV to male and female Thai partners. He had committed sexual offences against minors in the Czech Republic before fleeing to Thailand in 2014, the deputy chief of Provincial Police Region 5 said.

According to police investigators, he has flown to several major tourist attractions in Thailand but there was no record of his having left the country.

Pol Maj Gen Pongdet said police believe the man is still here.

Originally published in the Bangkok Post on January 18, 2017

South Korea: Women living with HIV reluctant to report sexual assault, because of prejudices against people with HIV in the legal system and HIV criminalisation law

Discrimination against people with HIV rampant: UN study
June 22, 2017

Discrimination against people with HIV rampant: UN study

Korean people with HIV still face rampant discrimination, over 30 years since the first case was discovered here, a study released Thursday by UNAIDS has found.

According to initial findings from the People Living With HIV Stigma Index in South Korea, 37 percent of respondents reported suicidal thoughts, and a similar proportion had cut themselves off from family and friends.

In addition, 71 percent of people with HIV said they had been insulted or threatened because of their status.

Although almost all respondents said they were receiving anti-retroviral treatment for HIV, 70 percent said they had still avoided going to a clinic when it was needed.

The economic difficulties faced by respondents were also serious. Although most were college educated and around two-thirds were aged between 30 and 50, only 37 percent were employed full-time.

Less than 1 in 10 full-time workers had told their employees they had HIV and more than half of respondents said they had quit school or work because of their HIV status.

A separate report released by the National Human Rights Commission on Wednesday found 91 percent of people with HIV said they faced discrimination at work and 83 percent were discriminated against at school.

Asked about sources of negative attitudes, the UNAIDS report found media to be no better than general internet comments, with both cited by three-quarters as a source of negative views toward people with HIV. Religious groups were cited by 64 percent.

Citing a lack of funding and government support, the authors of the report conceded the limitations of the survey due to small sample size, noting particularly that women were not properly represented. Just one woman with HIV was surveyed, partly because only 7.6 percent of people with HIV are women and there is a lack of networks for them.

Kwon Mi-ran, a consultant for Korean Network for People living with HIV/AIDS (KNP+), which conducted the research with UNAIDS’ support, said more research was required into women with HIV, who faced some specific issues.

“Women with HIV face serious stigma and the government’s policies have nothing that addresses women with HIV specifically,” she said. “There are no communities for women to share their experiences and support each other and they are isolated.”

Kwon said it was more difficult for women to report sexual assault, partly because of the attitudes of people in the legal system toward people with HIV and partly because of a law that criminalizes acts that can spread the virus.

Another growing form of discrimination against people with HIV was that nursing homes were refusing to accept them as an increasing number reached old age.

“Antiretroviral treatment is widely available in South Korea, and so most people living with HIV can keep their health. But when they need long-term care because of old age or other HIV-related diseases, there is no place they can go,” said Seo Bo-kyung of KNP+.

Only 27 percent said they were confident their medical records would be kept private and 17 percent said doctors had disclosed their HIV status to other people without permission.

Despite UNAIDS and World Health Organization recommendations to avoid testing without informed consent, the majority of respondents found they had HIV after being tested without their knowledge.

The NHRC report also found discrimination in health care, with 26 percent saying treatment had been refused, and a similar number saying their status was indicated on their bedside charts.

“Health care settings should be stigma-free environments to ensure people living with HIV not only stay healthy, but their loved ones and community are also protected from HIV,” Steve Kraus, director of the UNAIDS Regional Support Team for Asia and the Pacific, said in a news release accompanying the report. “It is imperative that we have protective laws and empowered communities.”

The report recommends consideration of HIV as a disability to bring it under existing discrimination protections, and for a comprehensive discrimination law. It also calls for NGOs to work with the government.

The respondents’ most favored policy is public education on HIV, but Seo Bo-kyung of KNP+ stressed that the quality of that education was important.

“In many cases, HIV education is conveyed as a means to deliver homophobic messages and tends to describe people living with HIV as pathogens, and not as humans,” he said. “That is the reason that we emphasize a human rights-centered approach.”

By Paul Kerry (paulkerry@heraldcorp.com)

UK: Yusef Azad of the National AIDS Trust calls for an end to HIV being used in court to emphasise the seriousness of a crime when it has no relevance to it

The "HIV Panic" attack – from prosecution to persecution
June 21, 2017
20th June 2017

Last month newspapers reported the trial and conviction of a man who had gone berserk in a Manchester hotel, during which he both caused criminal damage and bit a police officer who had been called to the scene to restrain him.  Deplorable of course, though sadly not that uncommon an event.  But there was a twist to this story, fastened on in newspaper headlines:

“‘Vile coward’ salesman with HIV deliberately BIT family man copper in shock hotel assault”

The man has HIV and his name and identity were disclosed in the media.  His HIV positive status is now permanently in the public domain for anyone who ever feels like googling him.  His HIV positive status was brought up in court by the prosecuting lawyer, ‘[The police officer] had a bite mark on his arm, which didn’t pierce the skin … As it was found that the defendant is HIV positive then more tests had to be taken by the police officer’.

A bite which does not pierce the skin caries absolutely zero risk of HIV – why does the CPS allow a prosecutor to claim that tests were necessary?  This is simply untrue and misleads the court.  But the alleged need for such tests and the implicit risk of HIV transmission is used to emphasise the trauma of the victim and the seriousness of the offence – it is meant to have an impact on the severity of sentence.  A man’s HIV status has been revealed publicly and permanently, and quite possibly had an impact on his sentence, even though his HIV had absolutely no relevance to the crime for which he was convicted.  This is not just prosecution, it is persecution on the basis of HIV status by police and prosecutors.

And unfortunately it is not a one-off but something NAT witnesses repeatedly as we monitor press reports on HIV in the UK.  With some regularity we come across news articles of cases where people have their HIV status raised publicly in court even though it has no bearing on the offence.  They are usually assaults of varying degrees of seriousness and the HIV status of the accused is claimed as a reason for the victim to have an HIV test, or take PEP, with great stress on the anxiety and trauma of worrying about possible HIV transmission.  Needless to say in no instance, following such assaults, has the victim actually acquired HIV as a result.

That is not surprising given, for a start, that well over 90% of people diagnosed with HIV are on effective treatment and incapable of transmitting HIV to others.  But the courts seem to take no account of treatment as prevention.  Nor do they seem to understand how HIV is and is not transmitted.  HIV is raised in cases of spitting, biting and scratching where HIV could not have been passed on.  As in this recent Manchester case, the HIV status of defendants are put in the public domain and their sentences often affected without justification.

Should we feel sorry for convicted criminals? Some might say they had it coming and they deserve justice.  Absolutely, justice is essential.  But this isn’t it.  Everyone has the right to be treated equally before the law but at the moment people with HIV are being treated worse than those who are HIV negative and guilty of the same offences.

What about the victims?  There is now an expectation that the impact on the victim of a crime is taken into account by the court.  That is understandable and right – but what happens when the fear of HIV is wholly without foundation and a result simply of stigma or ignorance.  What happens when a victim insists on an HIV test or PEP despite clear clinical advice that it is unnecessary and they are not at risk of HIV?  Taking account of fear and anxiety in such circumstances is for the courts simply to endorse and propagate HIV misinformation and prejudice. The harm of these cases goes beyond that to the defendant.  Everyone with HIV is harmed by newspaper accounts of trials which faithfully report the inaccurate fears of HIV transmission raised in court and which increase HIV stigma as a result.

Nor does this do any favours to the victims who are just reinforced in their trauma and misunderstanding of how HIV is passed on.

These cases remind me of the old ‘Gay Panic’ defence where people charged with attacking gay men would claim their actions were an instinctive immediate response to a gay man coming on to them.  A completely natural, if regrettable, reaction from a red-blooded male.  Happily, the CPS would now give short shrift to such a defence if raised in court.  But instead they irresponsibly play with an equally discreditable HIV-version in prosecuting crimes.  We might call it the ‘HIV panic’ attack, where, despite all the evidence and science showing that HIV has no relevance to the crime, they nevertheless encourage the ‘HIV panic’ of the victim to be raised in court as part of their case for the culpability of the accused.

This has to stop.  The police, CPS and the courts are failing in their Public Sector Equality Duty and are guilty of discrimination.  We call on the CPS to meet us and discuss how this injustice can be brought to an end as soon as possible.

Published by the National AIDS Trust on June 20, 2017

Canada: 27 year old Toronto man faces second aggravated sexual assault charge for alleged HIV non-disclosure

New charge laid against Toronto man who police allege did not disclose HIV status
June 21, 2017

New charge laid against Toronto man who police allege did not disclose HIV status

An additional charge has been laid against a 27-year-old Toronto man who police allege failed to disclose to at least two of his partners that he was HIV positive.

According to investigators, the suspect was diagnosed with HIV in February 2011 and in July 2011, he met a 24-year-old man through a personal ad on an online classified site.

The pair, police allege, engaged in an intimate relationship.

According to police, the suspect did not disclose that he was HIV positive and the 24-year-old man was subsequently diagnosed with the virus.

The suspect, identified by police as 27-year-old Ala Al Safi, was arrested and charged with aggravated sexual assault on April 10, 2017.

Upon further investigation, police say they discovered that a 21-year-old man also contracted HIV sometime after having an intimate encounter with Al Safi.

Police say Al Safi met the 21-year-old man in December 2016 through a dating website and also did not inform his partner about his HIV status.

Al Safi was arrested on June 19, 2017 and charged with an additional count of aggravated sexual assault.

He appeared in court on Monday.

 

Israel: 24 year old migrant from Guinea arrested by Israeli police for alleged HIV transmission

Illegal migrant arrested on suspicion of infecting girlfriend with HIV
June 20, 2017

Illegal migrant arrested on suspicion of infecting girlfriend with HIV

The 24 year old, living in the central Israel town of Rishon Lezion, was also held on suspicion to be residing in Israel illegally.

An illegal migrant from Guinea was arrested by Israeli police on Monday on suspicion of sexually assaulting his Israeli girlfriend and infecting her with HIV.

The 24 year old, living in the central Israel town of Rishon Lezion, was also held on suspicion to be residing in Israel illegally.

The man, whose name has not been released, was also suspected to be involved in forging Israeli work permits for other migrants in exchange for money.

On Tuesday, the Guinean migrant appeared in the Rishon Lezion magistrate’s court on suspicion of impersonation, forgery, acts likely to spread illness and illegal residence. The court extended the suspect’s time in custody by six days.

Canada: Rob Olver from Positive Lite magazine gives an overview of the Rethinking Justice Symposium

Rethinking Justice with Renewed Hope
June 20, 2017

Rethinking Justice with Renewed Hope 

So there I was, getting up at three in the morning once again in order to get to Toronto in time for an event. The event in this case was “Rethinking Justice 2017 Symposium on HIV Law and Human Rights” and I’d been looking forward to it especially since I knew a representative of the federal government would be there and I was very keen to hear what that representative might have to say to us. Two buses and a train later, I was in Toronto, waiting for the symposium to begin.

First off, Trevor Stratton of the Canadian Aboriginal AIDS Network (CAAN) welcomed us to the land and the conference. He went on to say that indigenous people understand about criminalization and to emphasize that indigenous women in particular are also disproportionately criminalized.

Next we heard Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, who also welcomed us, gave an overview of the day to come and posed the symposium’s overarching question: “Should we look at changing provisions in the criminal code that are used to criminalize people?”

After that the symposium proper got underway. The first segment was entitled “The State of HIV Criminalization” and it began with an audio presentation from Alex McClelland of Concordia University in partnership with the Canadian HIV/AIDS Legal Network. Alex does qualitative research, focusing on peoples’ lives in order to arrive at an empirical basis to assess the damage of injustice and violence at the hands of government employees. The audio portion of his segment consisted of various people talking about their experience of being criminalized and a lot of it was pretty hard to hear:

“I thought I was innocent until proven guilty.” “I was naked, along in a room with male guards watching me.” That sort of thing.

Unfortunately Alex was not able to attend in person but did address us by video after the audio presentation and then there was a live panel of persons living with HIV, during which Chad Clarke spoke in some detail about his own horrific experience, including beatings and deprivation of his HIV medication at the hands of the Canadian justice system employees.

And that set us up to hear our policy-makers’ response to HIV criminalization. The speaker was Marco Mendocino, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and as I sat here listening, I began to feel unexpectedly, if cautiously, optimistic.

He began by reaffirming the government’s commitment to HIV criminalization reform, saying there is “No doubt that we have a long way to go.” He went on to say that “HIV is not a crime. It should not be criminalized,” and delivered the news that Prime Minister Justin Trudeau has “introduced legislation to quash and erase previous unjust convictions.”

“HIV non-disclosure is a public health issue,” he said, and also, “Mabior made clear that future scientific development must be taken into account.” He went on to say that the use of the aggravated sexual assault provision “deserves further consideration… we want to get this right and are committed to taking the time and resources to do so.” It was remarkable to hear such positivity about HIV decriminalization from a government representative and it drew a big hand of applause.

Next came a panel discussion on “Criminalization in Canada and Internationally”, which I didn’t get to attend as peers on the panel didn’t want any media presence during the discussion.

The subject of the second panel was “The Science and its Interaction with the Law,” and that panel featured Megan Longley, a criminal defense lawyer who was the counsel in R v JTC (NSSC, 2013) as well as Art Poon, an Assistant Professor at Western University.

Megan’s talk was on the role of scientific evidence in avoiding wrongful convictions. As she told us, she’s a lawyer who also likes science and who had come to feel that the current state of HIV criminalization made little rational sense. She impressed on us the importance of science in proving these cases and delivered a short “Prosecution 101” as it applies to aggravated sexual assault. One of the more startling points made was that sexual assault cases are in fact very difficult to convict. Only about 3% of them do. Until, that is, you factor in HIV. In HIV-related sexual assault cases the rate is over seventy percent. And once we start to factor in such things as race or background of the defendant, a very disturbing picture emerges.

Art Poon spoke on “Phylogenetic Forensic Science and Implications for HIV Criminalization”, which turned out to be about the limitations of said evidence in such cases. “Phyloclusters offer great potential for misuse… there is little talk about the implications of these methods.” Although two individuals may carry HIV strains that are closely related, these will not necessarily be unique to the two parties and could extend to other persons within the same transmission network. More on this in my interview with Edwin J. Bernard, here.

After lunch we reconvened for an update on the campaign for prosecutorial guidelines by Glenn Betteridge, who is a staff lawyer with HIV & AIDS Legal Clinic Ontario (HALCO). Glenn spoke on how in Canada the provinces are responsible for the administration of justice. The Attorney General can suggest or set guidelines for prosecution lawyers but cannot dictate. Cops lay charges. Crown attorneys filter and stream them and they go forward if they’re deemed to have a chance of success and/or there’s sufficient community interest.

B. C. has a guideline for prosecuting these cases, as do England, Wales and, since 2014, Scotland. But we heard that here in Canada the Attorney General had previously ignored the science as well as community advocacy and had secretly devised a playbook. Since then, Ontario has been making favorable statements regarding HIV criminalization, but seem to have adopted a “wait and see” stance.

As to where the resistance to reform is coming from, Glenn told us that Ministers have been passive, disinterested because they see the issue as a loser politically. Also, Attorneys General are not used to being challenged or to being responsive to outside concerns. He went on to call the situation “a study in bureaucratic intransigence.”

We then heard presentations by Notisha Massaquoi, who is the Executive Director of Women’s Health in Women’s Hands and who spoke on “Critical Feminist Approaches to HIV Criminalization and the Law of Sexual Assault” and then Richard Elliott laid out the pros and cons of “Criminal Code Amendments as a Strategy to Limit Unjust HIV Criminalization.”

Ryan Peck, co-chair of the Ontario Working Group on Criminal Law and HIV Exposure spoke to us then on “Forging a community consensus: identifying elements of a consensus statement,” and the Canadian Community Consensus Statement on Ending Unjust Prosecutions for HIV Non-disclosure, following which we split up into groups for an exercise in forging consensus on these questions:

1 – Do you think it is ever appropriate to prosecute non-disclosure of HIV-positive status as a crime? Why or why not? What kind of situations might be legitimately prosecuted? What kind of situations should clearly be excluded from prosecution?

2 – Do you think it’s ever appropriate to prosecute non-disclosure of HIV-positive status as “sexual assault?” Why of why not?

3 – What do you think about changing the criminal code to exclude prosecutions for sexual assault and instead having a specific offence about non-disclosure?

What this exercise showed me is that even within our community it’s not easy to get consensus on these issues. And while the majority clearly favoured prosecutorial guidelines, it wasn’t unanimous. One lady stated that such guidelines would be of no use to her because as a Black woman she will always be a target for criminalization in our society.

Directly following the exercise there was discussion, facilitated by Tim McCaskell, a founding member of AIDS Action Now! and Valerie Pierre-Pierre, Director of the African and Caribbean Council on HIV/AIDS in Ontario (ACCHO)

Attending the Rethinking Justice Symposium presented a truly fascinating overview of the current state of play on the issue of HIV criminalization and I heard several people observe that here in Canada we seem to be on the cusp of some really favorable developments after moving so long in the other direction. Cautious optimism, as I said.

Here’s hoping that wave of optimism turns out to be justified and that we can ride it into a better future.

Canada: Positive Lite interviews Edwin J. Bernard, Global coordinator of the HIV Justice Network

Criminalization of HIV non–disclosure: is the tide turning?
June 20, 2017

Rob Olver interviews Edwin J. Bernard, Global coordinator of the HIV Justice Network,  at “Rethinking Justice 2017 Symposium on HIV, Law and Human Rights” 

One of the things that made the “Rethinking Justice: 2017 Symposium on HIV, Law and Human Rights” a “must-attend” for me was the presence of Edwin J. Bernard, Global Co-ordinator of the HIV Justice Network and foremost expert on HIV criminalization worldwide. PositiveLite.com had interviewed Edwin before and published him as well, but that was all the way back in 2012 and 2016 so I attended the symposium hoping for the chance of an interview.

I wasn’t disappointed. Edwin proved very gracious and willing to talk and towards the end of that very long day we sat down to get his take on how the HIV criminalization situation has evolved since we last spoke and where he thinks it might go, in Canada and globally.

******

So Edwin, thanks for taking the time to chat with us. I think the last time we interviewed was all the way back in 2012.

Right, I think it was. I think that when we talked in 2012 Canada was in a pretty bad place… or maybe it wasn’t, maybe it was before, I think it was before the Supreme Court handed down the Mabior decision and we’d been a little bit hopeful that perhaps they would look at the science… that they would have made a different decision than they actually did.

Yes, we were all expecting them to say that if a condom was used OR there was an undetectable viral load… and instead they said AND.

Yes, that was the very least they could have done.

And how do you see the progress that’s been made here in Canada since 2012? We’re looking at a different government now…

I don’t know if you know Elisabeth Kübler-Ross’s theory of the stages of grief. I came back after the Mabior decision in, I think, 2013 and there was, you know, anger and denial and depression … all of those things going on and I don’t think there ever was an acceptance that this was gong to be the legal standard for Canada.

But it’s taken a few years for there to be a resurgence of … figuring out how best to deal with it.

Today we’ve heard about all the different ways that Canada is at the forefront: the use of the sexual assault law and the disproportionate impact on racialized populations and on women and the fact that per capita it’s the highest number of prosecutions in the world and that the legal test is so unscientific that it’s non-disclosure and the risk of harm and not harm.

There’s a list of things that are so problematic. So of course a change in government has obviously helped tremendously. I’m very happy to hear that when Edwin Cameron, of the Constitutional Court of South Africa, when he spoke at the International AIDS conference in Durban, at our bidding highlighted the problem of Canada in particular in front of the Health Minister, who then called the Justice Minister and that led to the announcements today. And to me that’s amazing, that the federal government, that there’s a recognition that HIV is not a crime, it’s a public health issue. And to actually get to hear a government representative say that is a hell of a long way from where we were when I was here five years ago.

And the Legal Network and HALCO and COCQ SIDA and the community media, both PositiveLite and Xtra as well also did some amazing work. And the prosecutorial guidelines work, even though that didn’t lead to anything at the time.

One of the things I love about coming to Canada and particularly to Toronto is that this is where I get my inspiration, that there are so many brilliant advocates and activists with a wealth of knowledge and experience and despite Canada’s terrible reputation in terms of HIV criminalization or maybe because of it, the resilience of advocates and activists and the brilliance of mind. When I think about the work around guidance for nurses and health care workers .. that was world-leading.

There’s been so much amazing, world-leading work that’s been done here. The “Think Twice” campaigns that came from the grass roots, from AIDS Action Now … all of those things, to me, are so inspirational, that sometimes, even in the darkest times, it can actually inspire brilliance and so yeah – five years… but what a difference! It feels like we’re actually on the cusp of something brand new.

We certainly aren’t where we’d like to be but it seems like it’s all going somewhere now, after all those years of Tory rule.

Yeah and the other thing that I think is really special is the Canadian Coalition to Reform HIV Criminalization and Chad (Clarke) in particular. Chad reminded me that he had emailed me soon after he got out of prison. He said I was the first person he got in touch with, I guess because I was still blogging in those days and that I had put him touch with the Canadian HIV/AIDS Legal Network and those people and had led him on this path. And it’s so amazing to see now, how empowered he is, his courage and his strength and his leadership… it’s all so inspiring.

Yes it is. I know so many positive people who say that their lives are better now because of the way their situation brought them into focus and into this community. I feel that way myself.

I work on this issue all over the world and I think what’s interesting, what is special about HIV criminalization in Canada and how draconian the law is, is that once things are absolutely perfect in other ways, I mean there are still obviously issues, particularly around certain populations, undocumented migrants for instance, but in general things are pretty okay for people living with HIV, in terms of the medical side.

So it basically means that this is the thing, this is the thing you have to fight, have to work on. It’s the thing that’s most impacting your quality of life, your ability to feel… internalized stigma as well as discrimination and criminalization. So I completely get why this has been big in Canada.

I actually have to worry much more about my fellow human beings than about anything HIV is ever likely to do to me. So for me, the worst thing about living with HIV is other people… it’s not the virus. The virus is under control and I feel fine.

That’s like what Jean Paul Sartre’s play, Huis-clos (No Exit) said… “Hell is other people.” HIV stigma is other people. Yes.

You’re very active globally. How do you see Canada comparing with other countries at this point?

In my talk I was trying to situate where Canada sits globally and of course I did the… it’s very easy to do all the shaming and I’ve already listed all the different ways that Canada is a world leader in being problematic about criminalization. But I think that the announcements from the federal governmant, from Justice Canada, it actually sits very well in terms of where other countries with problematic provisions are rethinking criminaliation so … a number of states in the US have either modernized or are on their way toward modernizing their statutes. At the federal level there has been an attempt to pass a law for like the last six or seven years. It doesn’t ever get enough co-sponsors to be heard but there is a movement there in the US, even in the face of Trump and Trumpism.

Russia, in February of this year, their deputy minister for Social Affairs announced that they will be revising or removing their HIV-specific criminal law. And you know, the US and Russia have the highest numbers of criminal prosecutions in the world and then Canada’s third in terms of numbers.

But Canada is much higher per capita because you’ve got far fewer people with HIV than Russia or the US. So there’s a movement. Obviously there’s a grassroots movement and there’s a movement of civil society to push towards better laws or no laws at all around HIV. And Canada now is lookig like it could be part of the solution and not the problem that it’s been for so long. And it would be amazing if Canada could end up being a world leader in doing HIV justice rather than HIV criminalization.

U=U (undetectable = untransmittable) and the movement around it has been a game changer. There are other arguments for decriminalization or criminalization reform depending on how people want to come at it, but here in this country it’s certainly given advocates a greater palette to work from in their advocacy.

I helped Bruce (Richman)with putting the campaign together so in terms of the history, I wrote the English language news story about the Swiss Statement and covered it when I was a journalist and I’ve been pushing for many years to ensure that the criminal law is consistent with good science, not only around risk but also around the improved life expectancy, so the reduced harm of HIV and also the science of proof.

And I’ve done lots of work in that area. That’s what brought me to this work in the first place, was actually as a community-based journalist working on science. I wanted to bring the rationality to what felt like the irrationality of criminalization. So what Bruce and his colleagues have done with U=U is they’ve created a grassroots movement that’s popular.

And it’s taken far too long, you know – the Swiss Statement was in 2008. So Pietro Vernazza and I wrote a piece two years ago, looking at – I think it was called, “The Swiss Statement Seven Years Later”or eight years later… whenever it was. And he wrote about all of the studies, 052 and Partner had vindicated the Swiss statement of 2008. And I wrote about how it had impacted criminalization as well as stigma, both internalized and externalized stigma. And Bruce was inspired by that article to do the U=U campaign. So I have a huge amount of respect.

I think one of the problems has been, not the campaign itself, but the way that some groups and organizations and people living with HIV, rightly frustrated that many people do not have equitable lifetime access to treatment and are concerned about the medicalization of HIV above everything else.

And they sometimes want to kill the messenger. But the science is clear. If you’re on treatment, and it doesn’t even have to be undetectable because of course that’s a moving target. What is undetectable in one province is actually not in another, we’re discovering that. Alex McClellland’s talked about that.

So somebody who’s on treatment and adheres to it, whether or not they have access to viral load testing and whether or not that viral test shows undetectable or low levels, that person is extremely unlikely to pass on HIV to anyone and that’s fantastic and it’s something that we should celebrate.

It’s also a great advocacy tool to allow them to make sure that treatment and viral load testing are available to everyone who needs it, but that people shouldn’t be coerced into either knowing their status or taking treatment or to be afraid and to only take treatment because of criminalization.

But those are some of the more nuanced conversations that are going on about it, so in Canada of course it makes complete sense that the U=U message is welcomed and heard loud and clear because of the way that criminalization is framed around realistic possibility of transmission and the fact that the Supreme Court ignored the science in 2012.

So it makes complete sense to be focused on that. But there are a number of reasons why HIV criminalization shouldn’t be as problematic as it is in Canada and they’ve got nothing to do with science, but everything to do with human rights and equity.

The social determinants of health. HIV has been society’s way of condemning the sexually and behaviorally nonconformist. Any difference could be seized on and used against them.

In some ways HIV criminalization absolutely feeds into that and in some ways even the charges are often a surrogate marker of something else and it’s easier, it’s very easy to convict somebody for HIV non-disclosure.

It’s much harder to convict them of actual sexual assault or of domestic violence or of… it’s often due to a breakdown in a relationship and it’s just easier because there’s very little evidence that’s required to find someone guilty.

And the data that was shared this morning about how only three out of a thousand sexual assaults that are ever prosecuted result in a conviction, compared to probably 60 or 70 percent or probably even higher than that of all non-disclosure prosecutions being convicted.

And that’s also part of the problem, that HIV is not only a surrogate marker of being marginalized or stigmatized, but that criminalization is doing the same thing..

If I could ask you to just blue-sky for a moment, what do you think HIV criminalization is going to look like five years from now?

In Canada or globally?

Either one.

Well, it’s interesting that you ask about the five years because it’s five years since the Mabior decision, it’s five years since everyone was just devastated and it felt like it was pretty near the end of the world and you know, so much can happen in five years. We’ve got better science, science is behind us … the political will is behind us… even the fact that the Legal Network is part of our gobal movement, the HIV Justice Worldwide Coalition. It’s a global movement and they’ve played an incredibly important role.

So I would imagine as long as you continue to have the current political climate and there’s this coalition work, that in fiive years’ time I could well imagine that aggravated sexual assault will not be the law, will not be the charge. I can imagine that HIV non-disclosure, in and of itself may not end up being a thing that is prosecutable.

I would hope that there would be elements of mental, of mens rea, you know, that state of mind will be taken into consideration. The way it’s framed right now, you can’t even take state of mind into consideration. Whether that will be, as the global guidance recommends, malicious intent, or whether it will be more like a standard of recklessness, which is sort of a default standard and which is very much the same standard as in England and Wales.

And I would hope that it would be… whilst I really would hope, the ideal would be for there to be no criminal justice system interference in what is primarily a public health issue, I would imagine that the best-case scenario, as we’ve seen for example in the Netherlands.

I can imagine Canada being like the Netherlands. The Netherlands was the first country to do this, in 2005, through a number of Supreme Court rulings. Very different to your Supreme Court. It ended up in the situation they have now, where intentional exposure or transmission are the only things that can be prosecuted and there has only ever been one case since 2005. And I think that is probably the best case and I can imagine that happening.

Now, how it happens… there’s a lot to sort out. But if Canada could get from Mabior to here in five years then why not get to the point where only the very, very rare and difficult cases ever reach criminal court and that all the other cases are dealt with either by public health or through restorative justice or through community support. In five years, I think that’s quite, quite doable.

Sexual assault cases are difficult to even get to court, let alone prove and convict. If we contrast that with the startling success rate of HIV-related sexual assault cases and then factor n the racial stats for example, it paints a very strange picture.

Yes and I think that will be the sticking point in negotiations with the government and parliamentarians. When they discuss it, well that’s such a high legal standard, when I’ve talked with prosecutors, they’re like, “It is really hard to prove intent,” for example.

One would need to send a text afterward, saying, “Ha ha, welcome to the world of HIV.” Which has happened and if somebody was to produce an electronic paper trail to show state of mind, well, that would be used but that’s why potentially I think it’s possible that recklessness might be the compromise. We can prosecute reckless transmission or reckless exposure. And to be reckless, it’s slightly easier to prove but there’s a number of legal tests of recklessness, which means that you need to know your status, you need to know that HIV is transmitted by the way you’’ve behaved, you will have done nothing to prevent that. You will have no excuse as to why you didn’t disclose or use a condom.

So all of that. There’d be a whole load of those things to prove and then recklessness might be shown. But even then, they still need to prove transmission and that’s also very difficult. And I don’t know if you heard Art’s presentation on Phylogenetics but that’s also, there are huge limitations around that.

It’s not impossible; we’ve had reckless transmission in England and Wales. We’ve had 20 convictions in 15 years so it’s not like you can’t have them. It just means that there are a lot fewer of them.

I hadn’t been aware of that phylogenetic evidence is often misinterpreted.

That was actually how I got into doing this work. I was working for the U. K. equivalent of CATIE and we had our first prosecution in 2003.

And I was shocked and I didn’t know what to do about it, but I was writing about science. And the police actually contacted us and said, “We’ve got another case. Can you help us figure out how to prove that one person infected another?” And then I started looking at Phylogenetics.

And I realized that this was really complicated and that a tool which was really primarily used for public health was being misapplied in the criminal context as forensic evidence. I worked with a number of experts to produce a paper that Art referred to, in 2007, that for better or worse keeps being referred to as the paper that highlights the limitations of Phylogenetics in trying to prove that one person infected another.

And what is great about Phylogenetics and I think it should be used more often in criminal cases where transmission is alleged, because it can actually exonerate people. It can show that the viruses are not similar at all.

But when it shows that they are simlar, all it can say is that these viruses are similar and that’s consistent with the prosecutor’s arguments, but we need more evidence. You can’t just say, just because the Phylogenetic trees match, that cannot show direct transmission. There could always be other viruses in between, which means other people in between.

The complainant could have infected the defendant. Just because you’re diagnosed first doesn’t actually mean you were infected first. So all the other evidence needs to be brought in and so Phylogenetics alone cannot ever prove causation.

Can you direct me to that paper?

Sure, I’m the first author. It’s called “HIV Forensics”, so if you just search for E. J. Bernard HIV Forensics you’ll find it. And we did a second paper called “HIV Forensics 2”. That was produced by NAT, the National AIDS Trust. I was an author of that but we weren’t named for some reason. And that is also about this Recent Infection Testing Algorithm (RITA), which Public Health often does now, just to see if someone has been recently infected, compared to chronically infected.

And we did that to highlight that we were very concerned that these tests were being given back to newly diagnosed people to be told whether they had acquired HIV recently or not. We were concerned that someone who had been told that they had recently acquired HIV might thik that they could identify who had infected them, based on whether they had sex with them. And so we again highlighted that this is a public health tool that only suggests recency and it certainly can’t pinpoint timing.

That’s the thing about science. It can move forward and help us as it has with U=U, but it can move forward and create a number of problems if it’s misapplied and misunderstood.. So that’s the new frontier.

Particularly in Canada, if you’re going to change the law so that it’s about transmission and not about non-disclosure or exposure, then there’s a whole load of other science that needs to be understood and appreciated.

Oh, just to let you know, Richard, Notisha and I were on The Agenda. We taped The Agenda, which is on TVO and it’s going to be on on Monday. And even if you don’t catch it on TV I believe it’s also going to be on You Tube. And we had half an hour. I thought it was going to be a hard-hitting news show. We all did pre-interviews and in the end it was just half an hour of us telling Canada how problematic criminalization is. And we weren’t challenged. It was all like, “Yeah, you’re right.”

And they even read a statement from Justice Canada that basically said the same thing, you know, “We’re really concerned about the application of criminal law to HIV.”

So that’s why I feel that we’re at a turning point. Five years ago, if I was interviewed by mainstream media in Canada I would get such aggressive questions. Very moralistic. And that doesn’t happen any more. And that says to me that there is a change.

I mean, yes, I see on Twitter with the hashtag #HIVcrim and I remember looking it up and I see there’s someone who wants to impeach Justin Trudeau or something and he’s trolling us, but other than that, I think there’s a tide turning here.

Yeah, my experience of Canada is mostly… Canada as a country of compassion and it always felt so jarrring. I mean, it’s not over yet, there are still many issues around the treatment of indigenous people and sex workers and people who use drugs. But things seem to be improving in lots of areas so it’s part of the idea of the new Canada as a kinder, gentler country that people always thought it was, but that it just stopped being for a long time.

Let’s hope it’s going back there.

US: The Body reviews the latest development in HIV criminalisation in the United States

What’s New in HIV Criminalization in the United States: The Good, the Bad and the Ugly
June 16, 2017

What’s New in HIV Criminalization in the United States: The Good, the Bad and the Ugly

June 15, 2017

Table of Contents

California Senate Passes Bill Modernizing HIV Criminalization Laws

HIV activists in California rejoiced when SB 239 passed the Senate on May 31.

The bill amends the state’s existing criminalization laws to incorporate current understanding of HIV and treatment. It reduces HIV transmission from a felony to a misdemeanor, meaning that people convicted face no more than six months in jail rather than years in prison. The bill also eliminates several HIV-specific criminal laws that carry severe penalties, even for activities that do not risk exposure to HIV.

“There’s no evidence that criminalization inhibits HIV transmission,” stated Naina Khanna, the executive director of Positive Women’s Network-USA. Instead, the threat of arrest and prosecution inhibits testing, disclosure and accessing care and treatment. Criminalization can be, and often is, used “as tools of coercion and control, particularly for women,” said Khanna. “The threat of criminalization and prosecution can be enough to keep women in violent or abusive relationships.” That fear is not unfounded: While women make up only 13% of Californians with HIV, they make up 43% of those criminalized under the state’s HIV laws.

Furthermore, criminalization disproportionately targets people of color. Though blacks and Latinx people make up only 51% of Californians living with HIV, they are 67% of those prosecuted based on their HIV status. “These laws target the most vulnerable communities, pushing them back into the shadows,” said Khanna.

SB239 now moves on to the Assembly.

Missouri Supreme Court Upholds Michael Johnson’s Right to a New Trial

On April 4, the Missouri Supreme Court voted to uphold a lower court’s decision that Michael Johnson, a college wrestler sentenced to 30 years in prison, is entitled to a new trial.

In July 2015, Johnson was convicted on four counts of HIV exposure and one count of HIV transmission. HIV transmission is a Class A felony in Missouri. Johnson, a young black college student, was tried in a nearly all-white town. His race and sexuality were front and center throughout the entire court process. During jury selection, prosecutors asked prospective jurors whether they believed that being gay was a choice. During trial, graphic descriptions and images of Johnson’s penis were admitted as evidence. Most of Johnson’s partners were white.

Both in Missouri and across the country, advocates rallied to his defense, pointing to Johnson’s sentence as a collision of racism, homophobia and HIV criminalization. In December 2016, an appeals court ordered that Johnson receive a new trial. At issue was the fact that prosecutors withheld more than 24 hours of recordings of Johnson’s phone conversations from jail until the first day of trial. By then, it was too late for Johnson’s legal team to mount an appropriate defense. Calling the state’s violation “knowing and intentional,” the judge wrote that the prosecution’s actions were “part of a trial-by-ambush strategy that this Court does not condone.” The decision was upheld by the state’s Supreme Court.

Johnson, now age 25, has already spent four years behind bars. Two of those years were because Johnson and his family were unable to afford the $100,000 cash-only bail that would have enabled him to stay out of jail — and participate in his defense — while awaiting trial. He remains behind bars while he awaits his new day in court.

Florida Says “Sex” Can Be Non-Vaginal — When Prosecuting HIV Exposure

Under Florida law, it is a crime not to inform a sexual partner about HIV status before engaging in sexual intercourse. Until recently, another Florida law defined sex to be between a man and a woman. This is what 65-year-old Gary DeBaun used to overturn his conviction of unlawful sexual transmission of a disease after he created a false report for a partner stating that he was HIV-negative. Since DeBaun’s partner was another man, he and his lawyer argued that the criminalization statute did not apply to him. A lower court agreed and dismissed the case.

While the HIV criminalization law still stands, the law narrowly defining sexual intercourse does not. The Florida Supreme Court ruled that, for purposes of HIV criminalization, sexual intercourse also encompasses anal and oral sex. The prosecutor announced that charges would be brought against DeBaun.

SB 628, a bill that would update existing HIV criminalization laws to acknowledge treatment and prevention efforts, died in the Senate’s Health Policy committee in early May.

Pennsylvania Bills Would Slash Medical Confidentiality of Incarcerated People With HIV

In Pennsylvania, Representative Dom Costa has introduced HB305 and HB306, which expand the current laws criminalizing people living with HIV or suspected of having HIV in the state’s prison system.

HB305 circumvents medical confidentiality if a prison staff member has direct contact with the blood or bodily fluids of an incarcerated person. The bill allows the staff member to learn the incarcerated person’s HIV, hepatitis B and hepatitis C status. If the incarcerated person’s status is unknown, the staff member can request that the person’s blood be tested. If the incarcerated person does not agree to be tested, the prison is allowed to test the person’s available blood if a physician agrees that the staff member had significant exposure to the blood, that tests are needed to treat the staff member and the staff member requests that the blood be tested.

HB 305 defines prison staff members to include health care staff, correctional officers (or guards) and volunteers.

HB 306 amends the state’s Confidentiality of HIV-Related Information Act for people in prison. If passed, the state Department of Corrections must disclose an incarcerated person’s HIV, hepatitis B and hepatitis C status to all corrections officers required to interact with the person. While the bill prohibits corrections officers from disclosing this information to others, incarcerated people across the country have noted that staff members often gossip about medical and other confidential information they overhear or learn, often within earshot of others.

Both HB 305 and HB 306 have been in the state’s House Committee on Judiciary since February 3.

Ohio Supreme Court Hears Challenge to State’s HIV Criminalization Statute

In May, the Ohio Supreme Court heard arguments in State of Ohio v. Orlando Batista, challenging the legality of the state’s HIV criminalization statute. Under the state’s 2000 HIV law, which classifies non-disclosure as felonious assault, Batista was convicted of not disclosing his HIV status to his girlfriend before they had sex. She later tested HIV-positive. Batista was arrested and, after pleading no contest and admitting to transmitting HIV to at least two other women, was sentenced to eight years in prison.

Batista appealed, arguing that requiring a person to disclose his or her status to potential sexual partners is a violation of free speech and that, because HIV is the only disease that is criminalized, the law is also a violation of equal protection. He lost his appeal, but the Ohio Supreme Court agreed to review the issue.

Ohio had 356 HIV-related prosecutions and 59 convictions between 2003 and 2013, giving it the fourth highest HIV-related conviction rate in the U.S. As of 2015, more than 22,300 people in Ohio were living with HIV]].

HIV Is Not a Crime 2018 Conference Planning Has Begun

HIV advocates will be heading to Indiana next summer to share strategies, insights and best practices on repealing and modernizing HIV criminalization laws. The third HIV Is Not a Crime National Training Academy will be held at Indiana University-Purdue University (IUPUI) from June 3-6, 2018.

The conference will offer skills-building training, with an emphasis on grassroots organizing, advocacy, coalition-building and campaign planning.

“The HIV Modernization Movement (HMM) is excited to welcome HIV Is Not a Crime III to the IUPUI campus! Science has made extraordinary advances since the HIV epidemic began in the 1980s, but one area that hasn’t kept up is the body of laws that criminalize HIV. Lacking in scientific merit, these harmful laws stigmatize people living with HIV and are counterproductive to HIV treatment and prevention efforts. Organized activities like this one, that bring together people living with HIV and their allies to collectively strategize on reforming these draconian laws, are critical to ending the HIV epidemic,” said Carrie Foote, Ph.D., HMM Chair and an associate professor at the university, in a press release.

“We hope that hosting the Training Academy in Indiana will highlight the archaic HIV-specific laws and empower advocates and allies to modernize Indiana’s statues,” added Tami Haight, conference coordinator with the Sero Project.

Interested in helping to organize the conference? Sign up here to participate in one of the conference’s planning work groups.

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women.

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