Africa: Moving towards revolutionising approaches to HIV criminalisation

“We have all agreed with the Sustainable Development Goal of ending HIV and Tuberculosis by 2030. We cannot get there while we are arresting the same people we are supposed to ensure are accessing treatment and living positively,” said Dr Ruth Labode, a member of Parliament from Zimbabwe opening remarks at a two-day global meeting co-hosted by the AIDS and Rights Alliance for Southern Africa (ARASA) and HIV Justice Worldwide (HJWW) on 24 and 25 April 2017 in Johannesburg, South Africa, which focused on “Revolutionising approaches to Criminalisation of HIV Non-disclosure, Exposure and Transmission”.

The meeting was attended by advocates, civil society organisations, lawyers, judges, national human rights institutions and Members of Parliament from all over Africa and with some delegates from North America. Central to these deliberations was the draconian provisions within numerous HIV-specific laws being developed as government responses to the prevention and control of the HIV epidemic. The good intentions inherent in these pieces of legislation are often marred with provisions, which criminalise people based on their HIV status. Punitive provisions relating to ‘compulsory testing’, ‘involuntary partner notification’, ‘non-disclosure’ and ‘transmission’ of HIV are often cited, fueling stigma against people living with HIV.

The common theme binding these deliberations, was the negative impact of HIV criminalisation and the stories that were shared by colleagues.  The increasing trend of imposing criminal sanctions against people living with HIV, had resulted in adverse impact on public health outcomes for certain populations, especially women. While reinforcing stigma, HIV criminalisation impedes access to sexual and reproductive health services such as condoms, HIV testing and treatment. Further, HIV criminalisation discourages HIV-positive women from accessing ante-natal care, which leads to increased maternal and child mortality. The overly broad and vague nature of most HIV specific laws, accompanied by the imposition of criminal sanctions without empirical or scientific support, further underpins the rift between public health goals and the protection of human rights.

Representing the AIDS Legal Network, one of the partners who led the development of the 10 Reasons Why Criminalisation Harms Women, Johanna Kehler mentioned the fact that, “HIV criminalisation and HIV specific laws are often set against a social milieu that is patriarchal, heteronormative and perpetuates gender inequalities and utilises punitive approaches to “correct” imbalances.” She went on to add that these laws ultimately maintain and widen the divide between public health needs and human rights obligations.

Laurel 1“Most prosecutions globally involve no or negligible risk of transmission. Among the thousands of known prosecutions, cases where it was clear, much less proven beyond reasonable doubt, that an individual planned on or wanted to infect another person with HIV, are exceedingly rare. People are being convicted of crimes contrary to the best public health advice, but also contrary to scientific and medical evidence”, said Dr Laurel Sprague of the HIV Justice Network, who has since become the Executive Director of the Global Network of People Living with HIV (GNP+).

During the meeting, various organisations shared their experiences around litigating these matters and community advocacy mounted to reform problematic laws or specific draconian provisions. Cases from Zimbabwe, Nigeria and Niger showcased that challenges were experiences in most contexts.

The Uganda Network on Law, Ethics & HIV/AIDS (UGANET), together with other advocates and activists, continue to challenge the Ugandan law and constitutionality of the criminalisation provisions contained in the HIV Prevention and Control Act of 2014. The Southern Africa Litigation Centre (SALC) spoke to the extensive work that they furthered in Malawi, which included a focus on arbitrary arrests and dentition. Malawi has taken the centre stage where HIV criminalisation is concerned, as they are currently in the process of tabling a decade-old Draft HIV and AIDS (Prevention and Management) Bill, which contains draconian provisions around HIV criminalisation.

Amplifying the voice of survivors of HIV criminalisation, the meeting was privileged to engage with Kerry Thomas via telephone from a state correctional facility in Boise, Idaho in the United States of America. Mr Thomas, who was prosecuted for HIV non-disclosure and the sentence that he is serving, reinforced the unjust nature of these laws. Mr Thomas is currently serving his eighth year out of a 30-year sentence for non- disclosure to his ex-partner, despite there being no proof of transmission and the fact that he had consensual and protected sex. His appeal on the unconstitutionality of Idaho’s non-disclosure law, was overturned in the District courts in 2016.

The meeting concluded with very strong calls for everyone to joining the global HIV JUSTICE WORLDWIDE movement and organisations committed to utilise their existing resources to galvanise advocacy focusing on ending HIV criminalisation.

Participants agreed that there was a need to focus on the inter-sectionalities within the HIV criminalisation discourse, as well as a need for coordination and collaboration amongst legislators, members of the judiciary, parliamentarians, health care workers and civil society organisations to further advocacy related to this issue.

The participants also agreed that transformative approaches to HIV criminalisation, require both legal and social reforms, such as sensitisation of community members and the media. ARASA has committed to working with colleagues in developing a timeline of key events and advocacy opportunities, at which colleagues could participate.

Revolutionising approaches to Criminalisation of HIV Non-disclosure, Exposure and Transmission was supported by a grant from the Robert Carr civil society networks Fund.

Since its inception, ARASA has played an active role in addressing HIV criminalisation in the region and globally. ARASA has strengthened the capacity of civil society on the issue and supported partners to work with the media, parliamentarians, members of the judiciary and lawyers to address HIV criminalisation.

To read more about the meeting, follow #Decrim4Health on Facebook and Twitter. You can also view a gallery of photos taken during the meeting here.

UK: Whole genome sequencing shows potential as public health tool, but not yet able to definitively prove direction (or timing) in criminal cases

Potential for phylogenetic analysis to show direction of HIV transmission

24 April 2017. Simon Collins, HIV i-Base

Tentative results presented in a poster at BHIVA 2017 suggest that a new approach to phylogenetic testing might have the potential to show the direction of HIV infection between two individuals.

While the results are exciting from a scientific perspective, if the approach proves to be robust, this will raise many ethical and legal questions.

Until now, phylogenetic analysis, where sections of two viruses are compared for similarity, has been able to show similarity but crucially not direct infection (a third person could be involved) or direction of infection. Phylogenetic analysis is most useful for showing when transmissions are definitely not linked, when the two strains are unrelated. When linkage is shown, direction of infection cannot be inferred nor the possibility that both infections originated from intermediary partners.

The current study, presented as a poster by Kate El Bouzidi and colleagues from Brighton and Sussex University Hospitals Trust, used whole genome sequencing (WGS) to look at genetic diversity at each of the >9000 individual nucleotide sites in two linked viruses, with heterogeneous samples being interpreted as being the source virus for the sample which had homogeneity at the same nucleotide site.

WGS performed on 170 samples from a UK MSM cohort identified five linked pairs and these were compared to four control pairs where linkage was already established and direction inferred from clinical notes.

The direction of travel was able to be inferred using WGS for 3/4 control pairs, with the single indeterminate result linked to a sample that was taken so long after transmission took place that natural divergence was too great to determine direction.

WGS-inferred direction was consistent with clinical data for 2/5 case pairs. The lack of a signal in two further case pairs with indeterminate was able to be interpreted as not supportive direct transmission, but missing intermediary partners from whom samples were not available.

Finally, the case where WGS-inferred transmission did not match clinical route, was when the sample from the source partner was taken during primary infection (when HIV is likely to be homogenous at most points) several years before likely transmission to the second partner (whose sample was only taken during chronic infection (when heterogeneity is more likely).

This study is funded by both BHIVA and Public Health England as part of the COMPARE-HIV Study (Comparison of Molecular & Phylogenetic Approaches to Reconstruct an Epidemic of HIV), based at Brighton and Sussex University Hospitals NHS Trust.

Comment

The results are preliminary and clearly the timing of samples is likely to be important when interpreting the results from this approach.

WGS may improve our understanding of transmission networks at a population level but it cannot be used to confirm direct transmission at an individual level and sequence data should always be interpreted cautiously in conjunction with clinical information.

However, if the methodology is supported in larger analyses, the results will raise important ethical and legal concerns, especially in countries where HIV transmission is still criminalised.

Reference:

El Bouzidi K et al. Insights into the dynamics of HIV-1 transmission using whole genome deep sequencing. 23rd BHIVA, 4-7 April 2017, Liverpool. Poster abstract P31.

US: Article (including quotes from Sero's Sean Strub) highlights how movement against HIV criminalisation is growing stronger in 2017

HIV Criminalization Is Detrimental to Public Health. It’s Time for the Law to Catch Up. By Matt Baume. Outward: Expanding the LGBTQ Conversation on Slate.com

It was in the summer of 2015 that then-23-year-old Michael Johnson was sentenced to thirty 30 years in prison for transmitting HIV. Since 1988, his home state of Missouri has imposed harsh penalties for what prosecutors call “reckless infection,” and it’s hardly alone: Most states have, at some time, prosecuted people for transmitting the virus. But those prosecutions may soon come to an end.

Laws that establish HIV-specific crimes date back to the dark years of the epidemic: “Everyone detected with AIDS should be tattooed in the upper forearm, to protect common-needle users,” wrote William F. Buckley Jr. in the New York Times in 1986, “and on the buttocks, to prevent the victimization of other homosexuals.” At the time, hysteria over AIDS produced a national wave of stigmatizing laws—laws that have now been shown to have worsened the epidemic.

“If people are so concerned with HIV transmission, then perhaps the Missouri legislature and Governor Nixon should start by repealing this law,” wrote Kenyon Farrow, the U.S. and global health policy director for the Treatment Action Group, in response to Michael Johnson’s prosecution.

Though it may seem appropriate to discourage HIV transmission, laws that create HIV-specific crimes “are unjust and harmful to public health around the world,” according to the Infectious Diseases Society of America. Rather than discouraging transmission, the laws actually discourage patients from seeking testing and care, which in turn leads to more transmissions. Numerous other public health experts and political leaders have called for an end to HIV prosecutions, including the American Medical Association, the National Association of County and City Health Officials, the U.S Conference of Mayors, and the Obama administration’s Department of Justice.

But reform comes slowly, and advocates for repeal have found themselves toiling for years to overturn the harmful statutes. Now, at last, a coordinated nationwide effort is taking shape, and 2017 is likely to see significant advances in the decriminalization of HIV.

“There’s two big shifts over the last five or six years,” said Sean Strub, executive director of the Sero Project, a group that advocates for repeal. “One, the people in the LGBT community … have an understanding of what HIV criminalization is. It’s a general awareness of the phenomenon in the communities most directly affected.” He estimates that his organization has had over a thousand speaking engagements in the last half-decade.

“Second: The issue is increasingly seen in public health terms,” he said. “To be fair, there wasn’t a lot of hard evidence [until recently]. We now know that 25 percent of people with HIV in the U.S. know one or more individuals who are afraid to get tested for HIV for fear of getting criminalized.” That statistic is based on a Sero Project survey of over 2,000 people, designed to determine how the partners of people with HIV access health care. Their findings indicate that criminalization has a public health impact beyond people who already have HIV.

Organizations like Sero Project have learned some valuable lessons over the last few years about harm reduction, and they’re now leveraging those best-practices in communities and legislatures around the country. Those strategies include coordinated educational efforts that simultaneously hit multiple communities: Faith, LGBTQ, public health, and legal. In addition, advocates are establishing local coalitions so that legislative pressure comes from constituents, rather than national groups. And they’re engaging with individual prosecutions around the country.

This year will see particularly intense focus in midwestern and southern states: Mississippi, Tennessee, Georgia, the Carolinas, Ohio, and Indiana will see intensive outreach efforts. California is making great strides, with a bill announced earlier this month to modernize the state’s laws. That effort has included a detailed study of prosecutions, with an analysis of demographic data that could become a model for modernization in other states.

Customized approaches are key to the approach in each state. In Florida, for example, advocates have reached out to members of the criminal justice system, from police officers all the way up to judges. Iowa’s decriminalization effort included a collaboration between hepatitis and HIV groups.

Another important evolution is how closely reform advocates are working with advocates for other forms of social change. “Whether it’s trans activists or drug policy people or sex work activists or Black Lives Matter or penal system reform, HIV decriminalization seems to be a nexus for those efforts,” said Strub. “It’s so closely tied to the criminalization of bodies. … Five or six years ago, other organizations were not involved in this work.”

At the national level, advocates are sponsoring a Congressional lobbying campaign in March. Top priorities include reforms to Army policy, as well as the creation of incentives for states to modernize their laws. (An old provision in the Ryan White CARE Act, a 1990 law that provided funding for HIV programs, prompted many states to impose criminalization in the first place.) The Repeal HIV Discrimination Act, sponsored by Barbara Lee (D-CA) and Ileana Ros-Lehtinen (R-FL), would provide a framework for state-by-state repeal—and although it’s languished since 2013, it will see a renewed push next month.

Among the states to watch: Missouri, home of Michael Johnson. The state is in the midst of an organizing effort that Strub estimates could take two or three years. Johnson’s conviction was recently overturned due to prosecutorial misconduct, and he’s been remanded for a retrial likely to happen sometime this year. That’s encouraging news, though Missouri Court of Appeals refused to rule on the constitutionality of the law under which Johnson was convicted.

As a result, Johnson and many others like him will remain tangled in a maze of trials, legislation, and lobbying efforts, trapped by misguided laws that impose preventable harm—for now.

Russia: Lawmakers in the Altai Krai region unanimously agree to support a law to allow for mandatory HIV testing AND treatment

English version – Translation (For Russian version, please scroll down)

The Provincial Parliament’s legislative initiative will be sent to the State Duma as a draft federal law

BARNAUL, December 15. Deputies of the Legislative Assembly of the Altai Krai took the initiative to take on the federal law on compulsory treatment of people diagnosed with HIV. They decided to send a proposal to the State Duma as a session of the regional parliament adopted it, reports the press service of the Legislative Assembly.

“The Provincial Parliament will send to the State Duma a legislative initiative of the draft federal law” On Amendments to the Federal Law “On Prevention of Spread of the disease caused by HIV.” For example, citizens suffering from social diseases, which constitute a danger to others (tuberculosis), are subject to mandatory laboratory examination and medical observation or treatment and compulsory hospitalization or isolation in the manner prescribed by the law. The initiative involves the Altai Deputies to extend these norms to HIV-infected patients”, – said the press service.

They added that all 66 deputies unanimously supported the initiative to amend the Law. “The adjustment of the law is to allow professionals, as appropriate, provide forced treatment and monitoring of HIV-infected people to avoid the spread of the virus,” – explained the Legislative Assembly.

According to the press service, the medical check-up and treatment of HIV-infected people in Russia is fulfilled at the expense of the federal subsidies and intergovernmental transfers of the RF federal budget entities to ensure the procurement of antiviral drugs. “Thus, additional funding for coverage of medical observation and treatment of patients with HIV infection is not needed” – added the Legislative Assembly of the Altai Territory.

For most of the Altai Territory, the issue of HIV is relevant: according to the Regional AIDS Centre, for the past 10 years in the region, the number of people diagnosed with HIV has doubled to more over 24 thousand people. Now in the region 217 children and more than 3 thousand adults get treatment. According to official data of Ministry of Health of the Russian Federation, totally 824 thousand HIV cases are registered in Russia. The average therapy coverage nationally is about 40%.

Краевой парламент в порядке законодательной инициативы направит в Госдуму проект соответствующего федерального закона

БАРНАУЛ, 15 декабря. /Корр. ТАСС Ксения Шубина/. Депутаты Алтайского краевого Законодательного собрания выступили с инициативой принять на федеральном уровне закон о принудительном лечении людей с диагнозом ВИЧ. Решение направить такое предложение в Госдуму было принято на сессии регионального парламента, сообщили в пресс-службе Заксобрания.

“Краевой парламент направит в Госдуму в порядке законодательной инициативы проект федерального закона “О внесении изменений в Федеральный закон “О предупреждении распространения в Российской Федерации заболевания, вызываемого ВИЧ”. К примеру, граждане, страдающие социально значимыми заболеваниями, представляющими опасность для окружающих (туберкулез), в обязательном порядке подлежат лабораторному обследованию и медицинскому наблюдению или лечению и обязательной госпитализации или изоляции в порядке, установленном законодательством РФ. Инициатива алтайских депутатов предполагает распространить эти нормы и на ВИЧ-инфицированных больных”, – сказали в пресс-службе.

Там добавили, что все 66 депутатов единогласно поддержали инициативу о внесении изменений в ФЗ. “Корректировка закона должна позволить специалистам, в случае необходимости, проводить лечение и наблюдение за ВИЧ-инфицированными в принудительном порядке, чтобы избежать распространения вируса”, – пояснили в Заксобрании.

По данным пресс-службы, диспансерное наблюдение и лечение ВИЧ-инфицированных в России осуществляется за счет федеральных субсидий и межбюджетных трансфертов федерального бюджета субъектам РФ на обеспечение закупок антивирусных препаратов. “Таким образом, дополнительного финансирования на охват диспансерным наблюдением и лечением больных ВИЧ-инфекцией не потребуется”, – добавили в Заксобрании Алтайского края.

Для самого Алтайского края тема борьбы с ВИЧ актуальна: по данным регионального Центра СПИД, за последние 10 лет в регионе количество людей с выявленным диагнозом ВИЧ увеличилось в два раза – до более чем 24 тыс. человек. Сейчас в регионе получают лечение 217 детей и более 3 тыс. взрослых. По официальным данным Минздрава РФ, всего в России зарегистрировано 824 тыс. случаев ВИЧ-инфекции. Охват терапией в среднем по стране – около 40%.

Originally published in TASS

Matthew Weait, from the University of Portsmouth, writes on how stigma and the law affect the lives of people with HIV

HIV Stigma and the Criminal Law

December 1st marks World AIDS Day, an opportunity for people worldwide to unite in the fight against HIV, show their support for people living with HIV and to commemorate people who have died. Matthew Weait, from the University of Portsmouth, writes here on how stigma and the law affect the lives of people with HIV.

Today, December 1st, is World AIDS Day.  According to the latest available data from UNAIDS, 1.1 million people died from AIDS-related causes in 2015, there are just over 2 million new HIV infections globally every year, and just under 40 million people are living with the virus.  These are depressing figures, particularly in light of the advances in our understanding of HIV, its prevention and treatment, the laudable rise in the number of people accessing antiretroviral therapy (ART) (up from 7.5 million to 18 million in the past five years), and the massive impact of ART on reducing the likelihood of onward transmission.

Despite the fact that the life expectancy of people on ART has improved significantly, especially for those who receive a timely diagnosis, and that there exist effective ways of avoiding infection, the stigma associated with HIV remains.  The impact of this stigma, and the associated discrimination which people living with HIV (PLHIV) and those in key populations are subjected to, is substantial and undermines the work being done to promote access to health and other services critical to curtailing the epidemic.

Stigma is not only correlated with adverse health outcomes for PLHIV (including depression and lower adherence to medication), but also with non-disclosure of status and with less safe sexual practices.  It is for these reasons that combating stigma, and the factors which contribute to it, has long been identified as a public health priority.

Among the most pernicious contributors to HIV stigma is the widespread and inappropriate use of criminal laws against PLHIV and those at heightened risk of infection.  For example, PLHIV or those suspected of being HIV-positive have been and are at risk of being investigated, prosecuted and imprisoned for exposure offences – where no transmission takes place – even where there is negligible risk (as when a PLHIV is on effective treatment and has an undetectable viral load), where there is no risk (e.g. through biting or spitting), and even where a partner has consented to the risk involved.

In some countries, such as Canada, the very fact of non-disclosure of status can, irrespective of risk, turn otherwise consensual sex into sexual assault.  And where transmission does in fact occur (which is more likely when someone does not know their status and is not on treatment than when they do know and are), PLHIV are at risk of extended custodial punishment, even if it is not their intention to cause harm.

These laws serve no public health purpose and, because it is typically only those that have a positive diagnosis who may be found criminally liable, do nothing to incentivise the testing which is a pre-requisite of treatment and care.

It is not only those already living with HIV who suffer from the enforcement of punitive laws.  The social opprobrium associated with and / or criminalization of transgender people, homosexuality, sex work, and injecting drug use in many countries of the world (including nations with high HIV prevalence) reinforces stigma, makes it harder to support those at heightened risk of acquiring the virus, and in fact makes infection more likely.

If the possession of condoms is treated as evidence of sex work, sex workers may not carry them; and if the possession of syringes is treated as evidence of drug use, the chance that these will be shared increases, as does the risk of transmitting blood-borne viruses (including HIV and hepatitis C).  Put simply, the policing of these communities, and the absence of harm reduction opportunities in the carceral settings they may find themselves in as a result of that policing, exacerbate risks which are already greater than for the general population.

The adverse impact of using criminal law in the fight against HIV, and on those directly and indirectly affected by it, has been extensively researched and documented.  The consensus among expert bodies such as UNAIDS and the Global Commission on HIV and the Law is that countries should review their punitive laws and significantly restrict their use, and there have been a number of progressive and welcome developments both in law reform and in policing, many of these led by coalitions of activists and clinicians.  At the same time, and despite the evidence of the harm that they cause, and the stigma which it feeds and sustains, countries continue to pass and enforce these laws.

Irrespective of any moral or ethical questions there may be about HIV transmission, exposure, or non-disclosure, it is incontrovertible that the criminal law makes the elimination of HIV harder.  If we are going to end the epidemic, this needs to be recognised and acted on as a priority. If not, more people will become infected, more people will get sick, more people will have a lower quality of life – even when virally suppressed – and more people will die.

Published in BioMed Central on Dec 1, 2016

US: New Report from the William Institute finds HIV criminalisation laws in California do not reflect medical science

LOS ANGELES —  In California, outdated HIV criminalization laws do not reflect the highly effective medical advances for reducing the risk of HIV transmission and extending the quantity and quality of life for people living with HIV.

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status.  California has four HIV-specific criminal laws.

In HIV Criminalization in California: Evaluation of Transmission Risk, researchers Amira Hasenbush and Dr. Brian Zanoni suggest that these HIV criminal laws in California are not in line with medical science and technology related to HIV and may, in fact, work against best public health practices.

“Nine out of ten convictions under an HIV-specific criminal law or sentence enhancement have no proof of exposure to HIV, let alone transmission,” said Amira Hasenbush.  “No HIV criminal laws in California require transmission for a conviction.”Key findings include:

  • From 1988 until June 2014, 379 incidents resulted in convictions for an HIV-specific felony or sentence enhancement.
    • Of those, 100 percent required no actual transmission of HIV.
    • 98 percent did not require intent to transmit HIV.
    • 93 percent involved no specific allegation of conduct that is likely to have transmitted the virus:
      • Ninety percent of convictions were in solicitation incidents in which it is unknown whether any contact beyond a conversation or an exchange of money was initiated, thus possibly not having any exposure to HIV.
      • Three percent of incidents involved oral sex, a sex act whose transmission risk is estimated as “low” by the CDC.
      • Only seven percent of incidents involved vaginal or anal sex by definition of the crime.

HIV criminal laws have been disproportionately applied to sex workers. This has a disproportionate impact on women and people of color. Since solicitation by definition includes survival and subsistence sex work, these laws are also likely to disproportionately impact LGBT youth and transgender women of color.

Laws that criminalize conduct of a person who knows that they are HIV-positive may disincentivize testing and work against best public health practices.

The Williams Institute, a think tank on sexual orientation and gender identity law and public policy, is dedicated to conducting rigorous, independent research with real-world relevance.

Full report can be read here