News from other sources
US: Military highest court confirms sailor’s convictions for sexual assault due to alleged HIV non-disclosure
Source: STARS AND STRIPES on February 8, 2019
Failure to tell partners about HIV-positive status made sex nonconsensual, military court rules
A sailor’s conviction for sexual assault because he failed to tell women he was HIV-positive before having sex with them has been affirmed by the military’s highest court.
On Thursday, the Court of Appeals for the Armed Forces unanimously affirmed a lower court’s opinion that Petty Officer 2nd Class XXs’ convictions for sexual assault by bodily harm were correct. Because he didn’t disclose he had the virus that causes AIDS, the women could not give consent and were therefore assaulted, the court ruled.
X pleaded guilty at a Norfolk, Va., court-martial but subsequently appealed both his conviction and eight-year prison sentence. The guilty plea and sentence were affirmed last year by the Navy-Marine Corps Court of Appeals.
X tested positive for HIV in 2012, according to court documents, and was counseled to refrain from sexual activity without first advising prospective sexual partners that he carried the virus. But from July 2013 to June 2015, he had unprotected sexual intercourse with four different women without telling them he was HIV positive, the court documents say.
“One of these women, LK, informed X that she was taking medication that weakened her immune system as a result of a recent kidney transplant. The appellant assured her that he “wouldn’t do anything to … jeopardize it,” yet had sex with her anyway without disclosing his status.”
Another woman told X she had an HIV-positive family member and suggested that they get tested before having sex. But the appellant informed her that he was clean, the documents said.
“These two situations betray the callousness and deceit of the appellant, and are particularly aggravating,” the Navy-Marine court said.
US: 22-year-old man arrested in Mississippi for alleged HIV-exposure
Twenty-two-year-old XX has been arrested and charged with Knowingly Exposing HIV to Another Person.
According to the Oktibbeha County Sheriff’s Department, X was arrested Thursday.
Deputies are not releasing information about the investigation.
X had his initial court appearance at the Oktibbeha County Jail Friday morning. His bond was set at $10,000.
Peru: Man sentenced to six and half years in prison for alleged HIV transmission to his partner and daughter in second case of HIV criminalisation in Peru
Published in CONEXIÓN VIDA
Peruvian Justice criminalises the transmission of HIV
Tacna, Peru.- Having HIV is not a crime. Judge Indira Condori, of the fourth unipersonal criminal court in Tacna, sentenced a father to six and a half years in prison, for the crime against the body, life and health by “spreading” dangerous diseases to the detriment of their ex-partner and his daughter, to whom he transmitted.
This is the second sentence that criminalizes the transmission of HIV in the country and creates a negative precedent in the work against stigma discrimination, since far from generating justice, it encourages the criminalisation of an infection that can be prevented with adequate sex education.
Alberto Stella, Director in Peru of the Joint United Nations Program on AIDS – UNAIDS – argues that based on what was analyzed by a global committee of experts “there is no data indicating that by means of the general application of criminal legislation to the transmission of HIV, criminal justice is achieved or the transmission of the virus is prevented. This application rather runs the risk of undermining public health and human rights. “ The UN agency’s report adds that “fraud must be demonstrated and that there was indeed a transfer of that person to the other, otherwise the process lacks fundamental evidence.”
The Case: On January 29, the criminal court of Tacna pronounced sentence against the citizen of initials ABY Ch. For transmitting HIV to his ex-partner and his daughter. Also, he was ordered to pay civil damages of 15,000 soles in favor to his ex-partner and 20,000 to his daughter. The sentenced person is a fugitive from justice and with a current arrest warrant.
The mother filed the complaint in October 2017, after she learned that she and her daughter were living with HIV. She maintained a relationship with the accused from the age of 19 for almost 4 years of coexistence. According to the evidence in the trial, it was demonstrated that ABY knew about his diagnosis since 2013, but did not communicate about his health situation to his partner, who became pregnant and through vertical transmission transmitted HIV to the baby.
Analysis: The first thing that should be determined is that no person living with HIV has a legal obligation to report on their health status. Law 26626 protects the confidentiality of the diagnosis, but instead article 121 of the Criminal Code establishes as an offense the action of a person “who knowingly transmits a disease”.
The second is to establish that laws and protocols of care exist in Peru to prevent vertical transmission (from mother to child) of HIV. Law 28243, indicates that every pregnant woman by obligation must be tested for HIV, precisely as a method of protection. In addition, Ministerial Resolution 619-2014 approving Technical Standard 108 to provide actions for the prevention of mother-to-child transmission of HIV and ensures maximum protection so that the future baby is born without the virus, with antiretroviral treatment and diet with artificial infant formula.
Under these two considerations, we can establish that although there is no legal obligation, there could be a moral obligation to report HIV diagnosis to a partner or wife, but in addition, the circumstances of transmission should be assessed through apparently consensual sexual relations. Somewhere between both.
In the case of the transmission of HIV to the minor, if there is a possible responsibility of the State, because although there are norms and laws that guarantee the prevention of HIV from mother to child, here there was no such protection and that explains that despite the fact that countries have eliminated the vertical transmission of HIV, in Peru we still maintain 2%.
Julio César Cruz, director of the NGO PROSA, indicates that “there is co-responsibility of the State and the citizenship against this type of situation”. “It is very complex to define a responsibility in vertical transmission of HIV, since we would have to analyze whether or not the pregnant woman agreed to prenatal check-ups, HIV tests and others if the care protocol was used for this type of case” says Cruz.
In any of the cases, civil society organizations have spoken out against penalizing the transmission of HIV and give as an alternative better information on prevention, adequate sexual education and be vigilant so that they comply with approved health protocols. the Ministry of Health.
The lawyer of the sentenced citizen, has stated that he will appeal the ruling.
JUSTICIA PERUANA CRIMINALIZA LA TRANSMISIÓN DEL VIH
Tacna, Perú.- Tener VIH no es un crimen. La jueza Indira Condori, del cuarto juzgado penal unipersonal de Tacna, sentenció a seis años y medio de cárcel a un padre de familia, por el delito contra el cuerpo la vida y la salud al “propagar” enfermedades peligrosas en agravio de su expareja y su hija, a quienes les transmitió el VIH.
Esta es la segunda sentencia que penaliza la transmisión del VIH en el país y crea un precedente negativo en el trabajo contra el estigma discriminación, ya que lejos de generar justicia, fomenta la penalización de una infección que puede prevenirse con una adecuada educación sexual.
Alberto Stella, Director en Perú del Programa Conjunto de las Naciones Unidas sobre el Sida – ONUSIDA – sostiene que en base a lo analizado por un comité mundial de expertos “no hay datos que indiquen que por medio de la aplicación general de la legislación penal a la transmisión del VIH se consiga la justicia penal o se prevenga la transmisión del virus. Esta aplicación más bien corre el riesgo de socavar la salud pública y los derechos humanos”. El informe del organismo de las Naciones Unidas, agrega que ” tiene que demostrarse el dolo y que efectivamente hubo transmisión de esa persona a la otra, si no el proceso adolece de pruebas fundamentales”.
El Caso: El pasado 29 de enero , el juzgado penal de Tacna dictó sentencia contra el ciudadano de iniciales A. B. Y. Ch. por transmitir el VIH a su expareja y su hija. También, se le impuso el pago de una reparación civil de 15 000 soles a favor de su expareja y 20 000 a favor de su hija. El sentenciado, se encuentra prófugo de la justicia y con orden de captura vigente.
La madre presentó la denuncia en octubre del 2017, luego que se enteró que ella y su hija vivían con el VIH. Ella mantuvo una relación con el acusado desde los 19 años por casi 4 años de convivencia. Según las evidencias en el juicio, se logró demostrar que A.B. Y. conocía de su diagnóstico desde el año 2013, pero no comunicó sobre su situación de salud a su pareja, que al quedar embarazada por vía vertical transmitió el VIH a la bebé.
Análisis : Lo primero que habría que determinar es que ninguna persona que vive con el VIH, tiene la obligación legal de informar sobre su estado de salud. La ley 26626, protege la confidencialidad del diagnóstico, pero en cambio el artículo 121 del Código Penal establece como delito la acción de una persona “que a sabiendas contagia una enfermedad”.
Lo segundo es establecer que en Perú existen leyes y protocolos de atención para evitar la transmisión vertical ( de madre a hijo) del VIH. La Ley 28243, indica que toda mujer gestante por obligación debe hacerse la prueba de VIH, precisamente como método de protección. Además, la Resolución Ministerial 619-2014 que aprueba la Norma Técnica 108 para disponer acciones para la prevención de la transmisión madre a hijo del VIH y asegura una máxima protección para que a futuro el bebé nazca sin el virus, con tratamiento antirretroviral y alimentación con leche maternizada artificial.
Bajo éstas dos consideraciones, podemos establecer que pese a que no existe una obligación legal, podría existir una obligación moral de informar sobre el diagnóstico de VIH a pareja o esposa, pero además se tendría que valorar las circunstancias de transmisión, mediante relaciones sexuales aparentemente consentidas entre ambos.
En el caso de la transmisión del VIH a la menor, si existe una posible responsabilidad del Estado, pues aunque existen normas y leyes que garantizan la prevención del VIH de madre a hijo, aquí no hubo tal protección y eso explica que pese a que otros países han eliminado la transmisión vertical del VIH, en el Perú aún mantenemos un 2%.
Julio César Cruz, director de la ONG PROSA, indica que “existe corresponsabilidad del Estado y la ciudadanía frente a este tipo de situaciones”. “Es muy complejo definir una responsabilidad en la transmisión del VIH por vía vertical, ya que tendríamos que analizar si la gestante accedió o no a los controles prenatales, pruebas de VIH y demás si se utilizó el protocolo de atención para este tipo de casos”, refiere Cruz.
En cualquiera de los casos, las organizaciones de la sociedad civil, se han manifestado en contra de penalizar la transmisión del VIH y dan como alternativa mejor información sobre prevención, adecuada educación sexual y ser vigilantes para que se cumplan con los protocolos de salud aprobados por el Ministerio de Salud.
El abogado del ciudadano sentenciado, ha manifestado que apelará el fallo.
The PJP Update: February 2019
CHLP Speaks at National Stigma Conference in Washington, DC
On November 16, CHLP’s National Community Outreach Coordinator Arpita Appannagari spoke at the International Conference on Stigma at Howard University in Washington, DC. Arpita addressed the criminalization of viral hepatitis and stigma against people who inject drugs for a panel entitled Action Against Stigma. Moderated by Phill Wilson of the Black AIDS Institute, the panel also included Roscoe Boyd II of Prevention Access Campaign, Victor Reyes of New York Kids Club, Kamilah O. Martin-Proctor of the DC Commission on Person with Disabilities, and Cudore L. Snell of the School of Social Work at Howard University.
The Fine Print Blog—It’s the International Day to End Violence Against Sex Workers…and HIV Criminal Laws That Make Felons of Sex Workers Are a Form of Violence We Can’t Tolerate
To mark International Day to End Violence Against Sex Workers on December 17, CHLP Executive Director Catherine Hanssens authored a blog characterizing HIV criminal laws as a form of violence against sex workers. She asserts that those advocating for state HIV criminal law reform must not leave behind sex workers, who represent more than half of those arrested under these laws. Hanssens concludes, “If we believe that violence against sex workers must be protested and must end, we should protest and end the criminal laws that put a government seal of approval on this violence.”
Missouri State Representatives File Bills to Reform HIV Criminal Laws
On December 3, Representatives Holly Rehder (R – Sikeston) and Tracy McCreery (D – Olivette) pre-filed bills to reform Missouri’s HIV-specific criminal laws and held a press conference to announce their support for reform that will serve Missourians living with HIV. The press conference was covered widely by the media in Missouri (in the Missourian, an article in the St. Louis Dispatch and a Letter to the Editor by a member of the Missouri HIV Justice Coalition) as well as an AP story appearing in outlets around the country.
The bills, HB 167 (Rep. Rehder) and HB 166 (Rep. McCreery), are similar to bills filed last year when the coalition was an integral part of their drafting. Between the 2018 session and 2019 session, various stakeholders have expressed support for changing Missouri’s HIV criminal laws.
The Missouri HIV Justice Coalition has endorsed these bills and will continue to monitor them and prepare for any potential committee hearings during the upcoming 2019 legislative session.
Law Amending HIV Criminal Statutes Passes in Michigan
- Simple non-disclosure with the intent to transmit HIV is a Class F Felony, punishable by 4 years in prison.
- Non-disclosure resulting in transmission of HIV is considered acting with “reckless disregard” and is a class F Felony, punishable by 4 years in prison.
- Nondisclosure, acting with “reckless disregard,” and no transmission of HIV occurs is a misdemeanor, punishable by imprisonment of up to one year and/or a fine of up to $1,000.
State Advocacy Working Groups
Most states are not currently in legislative session but state advocates continue to meet and strategize around HIV criminal law reform.
Arkansas HIV Reform Initiative
Meetings are held on the on the second Thursday of the month at 11:00 AM (CT).
If you or your organization is interested in supporting HIV criminal reform efforts in Arkansas, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.
If you or your organization is interested in supporting ongoing efforts by California advocates, please contact Brad Lundahl at firstname.lastname@example.org or 323-848-9801 for additional information.
Florida HIV Justice Coalition
Meetings are held on the first Thursday of the month at 1:00 PM (ET).
If you or your organization is interested in supporting HIV criminal reform efforts in Florida, please contact Kamaria Laffrey at kamaria.laffrey@seroproject.
Georgia HIV Justice Coalition
Meetings are held on the third Wednesday of the month at 6:30 PM (ET).
If you or your organization is interested in supporting HIV criminal reform efforts in Georgia, please contact Johnnie Kornegay at johnnie.kornegay@
Idaho Coalition for HIV Health and Safety
If you or your organization is interested in supporting ongoing efforts by Idaho Michigan advocates, please contact Kevin Lish at email@example.com for additional information.
Indiana HIV Modernization Movement
If you or your organization is interested in supporting HIV criminal reform efforts in Indiana, please contact Carrie Foote at firstname.lastname@example.org.
Louisiana Coalition on Criminalization and Health
Meetings are held on the second Wednesday of the month at 11:00 AM (CT).
If you or your organization are interested in information about HIV criminalization in Louisiana or joining the LCCH, please contact Chip Eakins at email@example.com
Michigan Coalition for HIV Health and Safety
If you or your organization is interested in supporting ongoing efforts by Michigan advocates, please contact Kelly Doyle at firstname.lastname@example.org for additional information.
Missouri HIV Justice Coalition
Meetings are held on the second Friday of the month at 1:00 PM (CT).
If you or your organization are interested in working with becoming an advocate with the Missouri HIV Justice Coalition, please contact Ashley Quinn at email@example.com, or visit the coalition’s website for additional information.
Ohio Health Modernization Movement
Meetings are held on the third Monday of the month at 5:00 PM (CT).
If you or your organization would like information on HIV criminalization in Ohio or are interested in working becoming an advocate with the Ohio Health Modernization Movement, please email firstname.lastname@example.org.
Southern HIV Decriminalization Network
Meetings are held on the fourth Thursday of the month at 3:00 PM (ET)
If you or your organization would like information on HIV criminalization in the South or are interested in working becoming involved with the Southern HIV Decriminalization Network, please contact Charles Stephens at charles.stephens@
India: ‘Poisoning’ charges used for the first time to prosecute two people living with HIV
Published in the Times of India on February 8, 2019
‘Poison’ charge invoked against HIV accused
AHMEDABAD: Zone 6 police on Thursday invoked Section 328 of the IPC against the four accused in the human trafficking case which sent a shockwave through the city, especially after the accused were found to be HIV positive. A court also extended the police’s custody of XX by two days.
Police had arrested XX and her accomplice XY on February 3. On Tuesday they arrested two auto drivers, YY of Morena and YZ of Bhind in MP, who allegedly abducted a girl with the intention of human trafficking. During their medical checkup, it emerged that both YY and YZ are HIV positive.
Section 328 of the IPC, is invoked for an attempt to harm by means of poison or stupefying, intoxicating or unwholesome drugs. In this case, police invoked it due to the HIV positive status of the accused.
Travel and long-stay restrictions for foreign nationals with HIV have no logical basis and have been deemed a human rights violation by the United Nations
Published in South China Morning Post on February 5, 2019
Visa restrictions for HIV-positive immigrants still in place in dozens of countries
- Recent leak in Singapore of data of HIV-positive people renewed attention on its curbs on long-term stays by those who have the virus
- Countries with restrictions include Russia and the United Arab Emirates; there’s no logical basis for them any more, UNAids says
A data leak of Singaporean medical records exposing the HIV-positive status of 14,200 people last month triggered concerns about a backlash for those whose health status was made public in a country that continues to stigmatise the disease.
But the case, involving the records of 8,800 foreign nationals who tested positive for HIV in Singapore, also shines a spotlight on the city state’s restrictive policies towards foreigners with HIV, who face barriers to staying in the country for more than 90 days unless married to a Singaporean national.
The records were leaked by a foreigner in just such a situation, American Mikhy Farrera Brochez, who was deported after serving jail time for drug-related crimes and fraud, including hiding his HIV status. He was able to access the records with help from his boyfriend, a Singaporean doctor.
Singapore is one of only a handful of developed nations that still have laws restricting the long-term stay of foreign nationals with HIV – laws that have been deemed a human rights violation by the United Nations.
“When this  law was brought in there was a lot more fear of unknown issues around disease … but [today] the logic is just not borne out by any scientific or medical basis,” says Eamonn Murphy, UNAids regional director for Asia and the Pacific.
Instead, countries that still have such restrictions in place often do so because of “historical convention, ideology, or even passivity”, Murphy says. He notes that UNAids is renewing its focus on the issue this year, compiling a new report on national restrictions.
UNAids most recent comprehensive report on HIV-related travel and immigration laws in 2015 listed 35 countries with such restrictions.
However, incomplete data published in 2018 by UNAids named at least 18 countries that have policies restricting entry, stay or residence for people living with HIV. Information from many countries were left off the list, and will be updated this year to reflect the true extent. The same report found that 60 countries require testing for residence or other permits, including marriage, not limited to foreigners.
The exact numbers, however, are difficult to pin down, experts say. An independently researched global database counts 49 countries with HIV-related restrictions on long-term stay in 2018, based on information sourced from local embassies and reports from travellers and immigrants. Countries with restrictions include Russia, Singapore, and the United Arab Emirates.
“The data the countries present about themselves in diplomatic settings can be different from the policies that are actually executed,” says American epidemiologist Jessica Keralis, who has researched the public health impacts of such HIV-related restrictions.
For example, countries may not have regulations “on the books”, but employers can revoke visas for HIV-positive employees, or state insurance policy can make it difficult for immigrants to afford treatment, she says.
In other cases, official policy may not be known by regional or local officials and institutions.
These distinctions matter for HIV-positive immigrants, whether white-collar workers, migrant labourers or students, according to David Haerry, who publishes the Global Database on HIV-Specific Travel and Residence Restrictions, which names the 49 countries.
“Oftentimes people [sent abroad for work] don’t know and they fall in the trap: if you don’t know and you have to be tested on the ground, and then you are sent back on health grounds, your company knows,” he says. “It’s a big issue.”
Haerry receives daily emails through the database from people around the world wondering how to travel or relocate safely while living with HIV. In recent years, he’s seen restrictive policies become more of an issue for students looking to study abroad, but who fear the consequences of mandatory HIV testing even in countries where there is no explicit restriction on those who are HIV-positive.
For such situations, “we have no solution”, Haerry says.
Many national restrictions are holdovers from the 1980s, before the disease’s transmission was understood and the antiretroviral therapies and daily medications that can prevent its spread became widely available, according to UNAids’ Murphy. But he has seen progress globally.
A number of countries changed their policies after UNAids launched a 2008 campaign against the 59 governments that had bans at that time. The United States, South Korea and China were among the nations to remove restrictions in 2010, although South Korea retained some related to immigration, while China reportedly has mandatory HIV testing for some visas.
Singapore revised its own regulations in 2015 to allow people living with HIV to enter the country for short-term stays of less than three months, while South Korea in 2017 removed its final restriction, which mandated the testing of foreign teachers.
But conservative cultures, social stigma and inertia have kept some restrictions in play in other nations, experts say. The majority of such restrictions are found in conservative countries; more countries in the Middle East than anywhere else have them.
“The basis of discrimination is misconception and fear, and with HIV these boil down to drug use, men who have sex with men, and all these realities that countries don’t want to face,” says Peter Wiessner, who co-authors the global database. “There’s also xenophobia mixed in.”
That element can have a negative public health impact, according to Keralis.
“It communicates that HIV is a foreign contagion and a foreigners’ problem, and if [citizens] don’t mix with foreigners then they are not at risk,” she says. She notes that, paired with a lack of proper sex education, this can create a dangerous situation.
“There’s no incentive for people to seek more information or modify their behaviours,” she says.
Belarus: 89 HIV criminalisation cases initiated in 2018 in the Gomel region alone
Published in TUT.BY on February 6, 2019 – Google translation from Russian. For original article in Russian, please scroll down.
There are also minors. How and who in the Gomel region are infected with HIV
In the Gomel region, the number of registered crimes under the article “Infection with the human immunodeficiency virus” remains high. Among those included in the statistics there are minors. The Investigation Committee told who, how and why infects a dangerous disease.
In 2018, 89 crimes under this article were registered in the region.
A 28-year-old resident of the Rogachev region infected two fellow villagers with HIV. The first victim learned about the diagnosis during the examination in the hospital. The second victim was established by investigative means. The district court sentenced a man to imprisonment for a term of 5.5 years with serving in a correctional colony with a reinforced regime.
Several criminal cases were sent to the Zhlobinsky District Court against a 26-year-old woman who, in the period from 2013 to 2018, infected four men with HIV and put four more people at risk of infection. The victims are from 25 to 65 years old.
According to the Gomel Regional Center for Hygiene, Epidemiology and Public Health, 7973 people with HIV-positive status live in the region. In 2018, the highest number of new cases was registered in the age group of 40 years and older (47.7%).
Есть и несовершеннолетние. Как и кого на Гомельщине заражают ВИЧ
В Гомельской области число зарегистрированных преступлений по статье «Заражение вирусом иммунодефицита человека» остается по-прежнему высоким. Среди попавших в статистику есть и несовершеннолетние. В Следственном комитете рассказали, кто, как и зачем заражает опасной болезнью.
В 2018 году в области зарегистрировано 89 преступлений по этой статье.
В суд Светлогорского района направлено уголовное дело в отношении 24-летнего жителя Светлогорска, который подвергал опасности заражения ВИЧ жену, а также заразил несовершеннолетнюю знакомую.
28-летний житель Рогачевского района заразил ВИЧ двух односельчанок. Первая потерпевшая узнала о диагнозе при прохождении обследования в больнице. Вторая потерпевшая была установлена следственным путем. Районным судом мужчине назначено наказание в виде лишения свободы сроком на 5,5 года с отбыванием в исправительной колонии усиленного режима.
В суд Жлобинского района направлено несколько уголовных дел в отношении 26-летней женщины, которая в период с 2013 по 2018 год заразила ВИЧ четверых мужчин, еще четверых поставила в опасность заражения. Потерпевшим от 25 до 65 лет.
По информации Гомельского областного центра гигиены, эпидемиологии и общественного здоровья, в области проживает 7973 человека с ВИЧ-положительным статусом. В 2018 году наибольшее количество новых случаев заболевания зарегистрировано в возрастной группе 40 лет и старше (47,7%).
Читать полностью: https://news.tut.by/society/625331.html?crnd=18984
Sweden: Qualitative study shows inconsistencies in information given to people living with HIV pertaining to undetectability, condom use and disclosure obligations
Published in aidsmap on February 6, 2019
Navigating rules and reality: HIV disclosure, infectiousness and legal obligations in Sweden
Despite generally positive relationships with HIV clinic staff, men living with HIV in Sweden report that when it comes to rules regarding disclosure and legal obligations, clinicians were not always clear with patients regarding the meaning of undetectability and whether or not they still needed to disclose or use condoms. Men often needed to seek out other sources in order to find this crucial information, according to a recent qualitative study published in AIDS Care by Tobias Herder and Professor Anette Agardh at Lund University.
According to the Swedish Communicable Diseases Act of 2004, HIV infection is classified as a public health hazard. It stipulates that an HIV positive individual needs to be given written rules of conduct by the treating physician after diagnosis. These standardised rules outline the patient’s obligations, including disclosure of HIV status to sexual partners and using methods to minimise transmission, such as condoms.
In 2013, in accordance with results of the HPTN 052 study, the National Board of Health and Welfare issued a clarification that allowed physicians to exempt those with an undetectable viral load from disclosing their status to sexual partners.
In June 2018 the Supreme Court acquitted an HIV-positive man who did not disclose his status to his sexual partner. He was charged with exposing his partner to the risk of serious illness. However, the Court ruled that stable HIV treatment, with a maintained undetectable viral load, leads to no risk of infection and therefore the man did not need to disclose.
The main aim of this qualitative research was to explore experiences and perceptions regarding disclosure, infectiousness, undetectability, obligations and how this information was communicated to them. Researchers carried out ten in-depth interviews with men who have sex with men between November 2017 and February 2018. Median age was 43.5 (range: 25-71) with 7.5 median years since diagnosis (range: 2-27). Four men had received a disclosure exemption from their doctors, four had not and the other two were unsure. Most participants (70%) were born in Sweden.
An over-arching theme emerged from the interviews: navigating between rules and reality. This theme was identified through qualitative content analysis based on categories that emerged from the interviews. This theme — and the primary finding from the study — indicated that men living with HIV in Sweden needed to navigate the reality of living with HIV while trying to incorporate rules given to them by clinicians into their everyday lives. In certain instances, these rules were not clear or the men were given contradictory information.
Supportive clinics and clinicians
Many participants expressed that clinics were safe, supportive spaces and that they had a positive relationship with clinicians, especially nurses. The men reported that they were able to request a change in treating physician if they did not have a good relationship.
‘In that sense I think it’s great to have such a close relationship with both the physicians and nurses. Because when we meet, we have fun. And they know me, they know the way I am.’
Taking responsibility for one’s knowledge and peer support
Participants revealed that information about HIV and rules about sexual conduct were not always provided at clinics routinely. However, the men took it upon themselves to find out necessary information and felt comfortable asking clinicians when they were unsure. Some participants sensed reluctance on the part of clinic staff to fully explain that undetectability equated to uninfectiousness. The implied message was that men should continue using condoms as a precaution.
‘After multiple ifs and buts [the nurse] finally explained the thing with low infectiousness. I recently thought about this and it was very moralising. “Well, don’t forget that there is still a risk of transmission”. All I really wanted was a clear answer. (…) But she hardly wanted to give me that information.’
Men described accurate information relating to undetectability as a welcome relief; it meant that they no longer viewed themselves as infectious and could be more confident regarding sex. In many instances, this information was acquired from peers, HIV organisations or the academic literature, and not directly from clinics. The importance of peer networks for information-sharing and support was emphasised by some participants.
‘Because they are also HIV positive, they know everything, they know what you are going through, they know what you think and how you function.’
‘There was a security within myself that the virus cannot be transmitted, and reasonably I should be able to have sex on equal terms, as if I didn’t have the virus.’
Finding ways to relate to different rules
While mandatory disclosure to sexual partners and condom use were topics that all participants had discussed with their doctors at the time of diagnosis, the manner in which the rules of conduct were received, and their impact, differed among participants.
Some described it as an inherently stigmatising and negative experience, with a sense of being treated like a criminal. Others only vaguely recalled the discussion and cited their distress regarding the diagnosis as a reason for not fully processing all the information at the time.
“I believe it was more, like, how can you survive? Will I work? I mean questions about life that are bigger than the rules of conduct, more existential questions, I would say, were important at that time.’
‘I think it is really bad that they don’t tell you this. Really bad.’
Those who had received exemptions from the obligation to disclose their HIV status had generally asked their doctors directly. Some participants were not aware that they could be granted an exemption.
Due to fear of criminal charges, some men kept updated on court cases pertaining to HIV non-disclosure and based their rules of conduct on rulings from these cases.
‘As I have understood it, a prosecutor would not move on with the investigation if the person is well treated.’
Inconsistent information leads to frustration
Participants expressed frustration at receiving inconsistent information at clinics. Rules relating to condom use were particularly vague, with some physicians stating that condoms did not need to be used in long-term relationships when undetectable, while others stated that condom use was always necessary. Terms such as ‘minimal risk’ or ‘very little risk’ caused confusion and were not easily translated into real-life instances. Participants felt that younger doctors were more likely able to state unequivocally that undetectable equated to uninfectious, whereas older doctors were much more hesitant to do so.
‘There are quite different responses. Even from the same unit, institution, the response depends on who you talk to. As a person living with HIV I find this quite unpleasant.’
‘The newer ones that come (…) Well, they are more like “But, my goodness, you are not infectious anymore!”, or something like that, yes.’
This study highlights the importance of clear communication between healthcare providers and patients in a country where prosecution for HIV non-disclosure is still a possibility. While many participants expressed that HIV clinics were safe spaces and that they had developed good relationships with staff, they also reported that there were inconsistencies in the information they received pertaining to undetectability, condom use and their disclosure obligations. Some were not even aware that they could be exempt from disclosing.
Men needed to find ways of navigating the Swedish rules and their lived realities, often relying on knowledge gained from other, non-clinical, sources such as peers. Knowledge about being uninfectious was welcomed as a relief for the men, but needs to be communicated more directly, consistently and openly.
Herder T & Agardh A. Navigating between rules and reality: a qualitative study of HIV positive MSM’s experiences of communication at HIV clinics in
Canada: Advocacy groups call on provinces to follow the Justice Department’s directive to limit prosecutions for HIV non-disclosure
Published in The Canadian Press on February 4, 2019
Groups want provinces to have consistent policies on limiting HIV prosecutions
VANCOUVER — Advocacy groups are calling on provinces to follow the Justice Department’s directive to stop unjustly prosecuting HIV-positive people for not disclosing their status if there is no chance they could transmit the virus to their sexual partners.
The federal directive goes further in saying people who also use a condom or engage in oral sex should generally not face serious charges such as aggravated sexual assault.
“We’ve written to all provincial attorneys general following the federal directive to say ‘Here’s the federal directive. We reiterate to you what the science is telling us and public-interest reasons for you to appropriately limit the use of criminal law.’ ”
Inconsistent policies mean that HIV-positive people in most provinces may fear being threatened with prosecution by partners who have no basis for a complaint and could even shun treatment based on stigma and discrimination, Elliott said.
In July 2018, scientists from around the world, including Canada, published a consensus statement on HIV transmission in relation to criminal law in the Journal of International AIDS Society. It said correct use of a condom prevents transmission and that possibility is further decreased or eliminated when someone has a viral load that is low or undetectable.
The Canadian HIV/AIDS Legal Network and other organizations are currently pushing Attorney General David Eby to limit HIV prosecution in British Columbia.
“There is not a single circumstance identified in the current BC Prosecution Service policy where they say we will not prosecute even though both Ontario and the feds and Alberta, in a letter, have somehow been able to clearly state that no, we will not prosecute in our jurisdiction someone who has a suppressed viral load.”
Eby was not available for comment.
Dan McLaughlin, spokesman for the prosecution service, said the province is reviewing its policy and has been considering amendments to incorporate the directive of the federal attorney general.
The review will endeavour to ensure B.C.’s policy “addresses both public safety concerns and the issues of fairness and equity in a manner consistent with the law,” he said in a statement.
Elliott, who will be one of the speakers on the issue Tuesday at Simon Fraser University, said about 210 people across the country have been prosecuted for alleged HIV non-disclosure, the second-highest number in the world, after the United States.
Valerie Nicholson of Vancouver has been HIV-positive since 2004 and said her viral load has been negligible since 2008 because of the antiretroviral medication she takes.
Nicholson, who is a member of the Canadian Coalition to Reform HIV Criminalization, said B.C. is “behind the times” with its disclosure policy.
She said she always reveals her status to sexual partners but that information was used against her by a man who informed her a year and a half after their relationship ended that she transmitted the virus to him and he would call police.
“I lived in fear for six months waiting for that knock on the door for the cops to be there,” she said. “I work in this field and if that can do that to me what does it do for someone (else)? Do they stay in an abusive relationship?”
Her big worry was that she had no way to prove she’d had a conversation with the man about her HIV status at the beginning of their relationship, Nicholson said.
Angela Kaida, a Simon Fraser University global health epidemiologist with an interest in the links between HIV and sexual and reproductive health, said the evolving conversation around the virus that is treatable needs to include the latest scientific evidence.
“People can live a normal life expectancy, they can have babies, those babies can be HIV-negative and healthy. People can have sex without a condom and not transmit HIV,” said Kaida, who will also be a featured speaker at the university on Tuesday.
“We have that science but what we haven’t resolved is the stigma, the discrimination and misinformation about HIV. What the evidence tells us that even if we criminalize people it’s not serving a public health goal.”
Canada: Workshops find that HIV non-disclosure laws are little known amongst women living with HIV and contribute to social injustices
Published in aidsmap on February 4th, 2019
HIV non-disclosure laws perpetuate social injustices against women in Canada
People living with HIV in Canada can be charged with aggravated sexual assault and be registered as sexual offenders if they do not disclose their HIV status, but many HIV-positive women have little knowledge of this law, according to a recent qualitative study. The law contributes to increased HIV-related stigma, social injustices and vulnerability to violence for women living with HIV, argue Dr Saara Greene and colleagues.
Forty eight women took part in seven arts-based workshops which each took place over a four-day period. Each workshop included an education session regarding the legal implications of non-disclosure, followed by a focus group discussion that allowed women to share thoughts, feelings and concerns regarding the law.
Canada is one of many countries that continues to criminalise non-disclosure of HIV positive status in sexual acts between consenting individuals. Transmission of the virus does not need to occur: a person can be prosecuted for exposure to the virus in the absence of transmission.
In 2012, the Supreme Court of Canada clarified its position on HIV transmission, ruling that people living with HIV are legally required to disclose their status to sexual partners before engaging in sexual activities that pose a ‘realistic possibility of transmission’. According to the Court, two combined factors could be used as a defense against this realistic possibility of transmission: a low plasma viral load (under 1500 copies/ml) and the use of a condom.
Thus, the law does not acknowledge biomedical advances that conclusively show transmission is impossible if the infected individual is virally suppressed (see our factsheet on undetectable viral load and transmission). The ruling leaves room for those engaging in condomless sex with an undetectable viral load to be prosecuted. In Canada, a charge of aggravated sexual assault could carry a maximum sentence of life imprisonment and registration on the sex offender registry.
A more recent 2018 federal directive issued by the attorney general states that a person living with HIV who has maintained a suppressed viral load (under 200 copies/ml of blood) should not be prosecuted, because there is no realistic possibility of transmission. However, this directive only applies in Canada’s three territories and not in the provinces where the vast majority of the population live. Advocates are calling on the provinces to issue similar directives.
The workshops were carried out in 2016 and 2017, in three Canadaian provinces (Ontario, Saskatchewan and British Columbia). The median age of participants was 47 (range: 30-59); the majority of women were Indigenous (60%), with only a small percentage of white women (8%). It was important for minority women to be oversampled as HIV prevalence is nearly three times higher in Indigenous peoples across Canada, with high rates of HIV diagnoses occurring in young Indigenous women. Additionally, 42% of women charged with HIV non-disclosure are Indigenous.
Most women were heterosexual (73%), cisgender (94%) and born in Canada (79%). One-third of women were single, with 29% reporting a common-law relationship.
Analysis of the focus group discussions revealed the following themes:
Confusion and concerns regarding the law
Overall, the education sessions revealed that women were largely unfamiliar with and poorly-informed about laws pertaining to non-disclosure. Questions and concerns were related to legal implications (such as a whether charges could be brought against them for exposure in the absence of transmission or for sexual interactions several years ago). Several women asked what it meant to have a low viral load.
Social and legal injustice
Women felt that the law perpetuates existing injustices in the lives of diagnosed HIV positive women. Thus, factors such as stigma, sexism, racism, colonialism and a lack of education might put those already disadvantaged at a higher risk of being criminalised.
“Like even this isn’t accessible or something understandable for some of my people because we have literacy issues. Some of our people, they left residential school at grade 6 and grade 8…” (Jaqueline, Saskatchewan, speaking about a legal factsheet given to participants)
A contradiction inherent in HIV non-disclosure criminalisation law is that while individuals who are unaware of their HIV status and have a high viral load are more likely to unknowingly infect others, these individuals cannot be prosecuted under Canadian law as intent cannot be proven. The women expressed that the law unjustly targets those who are diagnosed:
“…When I was first diagnosed, I had a higher viral load because I wasn’t being treated. And so actually the silent people who don’t know are more at risk of passing it on. So, who is this [law] even protecting? We are the least likely to pass it on.” (Lori, British Columbia)
As a result of assault laws being used in non-disclosure cases, a common sentiment expressed by women living with HIV was that they were carrying a biological weapon. Thus, HIV stigma was internalised, as a result of the legal system depicting women as capable of inflicting serious harm on their partners:
“…If I was going to go over there and stab [participant] with a knife, that’s aggravated assault. So, they’re taking that knife away and using HIV. I may not have given it to her. So, it’s like the knife never even touched her or the knife wasn’t used. I’m still charged.” (Rachelle, British Columbia)
Participants expressed a sense that they were under surveillance by the criminal justice system when it came to their sex lives. In order to prove innocence, women would need to provide evidence of both a low viral load and condom use, or of disclosure.
The researchers labelled this an ‘intimate injustice’, with HIV-positive women needing to prove their innocence within an inherently unjust and oppressive system. The lengths that women would have to go through to prove this innocence is reflected here:
“So how many people do you have in that room? You have the lawyer that’s witnessing the paper that you’re signing that you’ve disclosed. You have the doctor to say, ‘Yeah, you’re under a viral load’. You’ve got the forensic scientist there getting any evidence. You know, everybody is watching.” (Lilian, British Columbia)
A common question related to undetectability was:
‘So when I look at it, I’m undetectable. So, I cannot transmit HIV to who I’m going to have sex with. So why is it any of their business that I have it when I’m undetectable?’
Another common question was how to prove that a condom was used or that disclosure had occurred after a sexual encounter had taken place. It could come down to a ‘he said, she said’ situation, with the HIV-positive woman needing some form of conclusive proof that she had used a condom or disclosed her status prior to engaging in sexual contact.
“Okay, so say I had a sexual partner. I just met this guy. And my CD4 count is 880. I’m undetectable. But I’ve got to tell him before we get into bed. Do I need to make him sign a document and lock it up and have it witnessed by the neighbor?” (Zainab, Ontario)
Vulnerability to violence
Non-disclosure laws may place women at greater risk for violence. As many as 80% of Canadian women living with HIV have experienced violence in adulthood and the requirement to disclose HIV status to sexual partners could increase the likelihood of intimate partner violence by placing women in a vulnerable position.
Women expressed that they do not always have control over when or how sex occurs with their partners; this negates their agency when it comes to negotiating condom use or disclosing their HIV status.
There was also the question of how disclosure applied in cases of domestic abuse and rape. The law would require women to disclose to abusive partners, placing them at risk of even more violence. The troubling nature of this was expressed in this quote:
“I was raped by three [people] in [Canadian city]. They broke into my home and they held me prisoner for 24 hours and beat me and raped me. And if I had told him I was HIV positive, I would have been dead. I know it. So where does that fit in the picture?” (Julie, British Columbia)
Additionally, the law could be used against HIV-positive women by vindictive partners wishing to ‘punish’ them. Many women had been threatened with charges for non-disclosure by disgruntled partners:
“Could they turn around and even if you’re honest and told them, then … they lied and said, ‘Well, I caught it from her’, or him. And they go to the police and get them charged, just out to be spiteful and mean.” (Catherine, Saskatchewan)
Concerns over violence were particularly salient for Indigenous women:
“When you include the Indigenous community and the numbers and statistics there, like we’re already like 10 times the rate of being gone missing, murdered and, you know, facing violence every day. So, when you throw in … you know, HIV, you know, like it just becomes sometimes not even safe. A lot of people stay in very vulnerable situations because of this law…” (Jaqueline, Saskatchewan)
The researchers conclude that for women living with HIV in Canada, non-disclosure laws can lead to unjust victimisation, perpetuating legal and social injustices. Many of the women did not have the necessary legal knowledge to fully understand the implications of their sexual behaviour to begin with. HIV-related stigma has become legally entrenched and results in women who are anxious about sexual encounters and fearful that they will need to find ways of proving their innocence. Non-disclosure laws may also lead to increased violence against women.
When combined with factors such as sexism, racism, colonialism and violence against women, HIV criminalisation results in continued oppression and thus, advocacy for legal reform is necessary and urgent. The recent federal directive is a step in the right direction but it will still take some time for this to filter down to provincial police and prosecutors.
Greene S et al. How women living with HIV react and respond to learning about Canadian law that criminalises HIV non-disclosure: ‘how do you prove that you told?’ Culture, Health & Sexuality online ahead of print, 2019. (Abstract).