Missouri police, prosecutors and media reach new low in history of overly zealous policing of overly broad HIV criminalisation [updated]

Following the prosecution and conviction of Michael Johnson, the US state of Missouri is now ‘ground zero’ for both overly broad HIV criminalisation and overly zealous law enforcement.

Yesterday police arrested (and alerted media to) a man whose only ‘crime’ was to chat with an undercover cop on social media.

He allegedly suggested they meet for sex without condoms without disclosing his HIV-positive status.

Update: He is now charged with attempted (sexual) HIV exposure, which, is in fact, not actually a crime in Missouri. It is only a crime to attempt to donate blood, organs or sperm knowing you are HIV-positive. Otherwise you have to have acted in a reckless manner and engaged in sex without disclosure.  As well as the HIV-specific statute below, there is a separate Missouri law of ‘attempt’, which seems to mean that even talking about having sex without disclosing your HIV-positive status first is apparently a ‘crime’ to overzealous law enforcement officers and proseutoris in the state in Missouri.

Screenshot 2015-07-22 10.59.58However, the media reports asking others to contact police if they have had sex with this man may produce an actual complainant.

KMOV.com

Update: Surely what this man is alleged to have done is not a ‘crime’ in any real sense.  It is rather a heavy handed way to control and punish people living with HIV for daring to have sex lives. This is clearly possibly entrapment. Which is a crime defence to a crime in Missouri.

Screenshot 2015-07-22 11.24.58Missouri police, prosectors and media need to be told that this is unconstitutional, barbaric and completely unacceptable!

 

Ending overly broad HIV criminalization: Canadian scientists and clinicians stand for justice

This week, thousands of HIV scientists and clinicians are meeting in Vancouver at the 8th International AIDS Society Conference on HIV Pathogenesis, Treatment and Prevention, also known as IAS2015.

The focus is on ending the AIDS epidemic through new evidence and guidelines on the impact of antiretrovirals for both treatment and prevention.

At Monday’s press conference announcing these exciting developments, community representative Dazon Dixon Diallo, stressed that the science will not work without legal, policy and structural changes, including ending overly broad HIV criminalisation, which she described as “stigma on supersteroids.”

Fittingly, this week, the Journal of the International AIDS Society published a Viewpoint article co-authored by myself and two colleagues, Cécile Kazatchkine of the Canadian HIV/AIDS Legal Network and Patrick Eba of UNAIDS.

‘Ending overly broad HIV criminailization: Canadian scientists and clinicians stand for justice’ highlights the “Canadian consensus statement on HIV and its transmission in the context of the criminal law” which was born out of the belief that the application of criminal law to HIV non-disclosure in Canada was being driven by a poor appreciation of the science of HIV.

More than 75 HIV scientists and clinicians Canada-wide have now endorsed the statement, agreeing that “[they] have a professional and ethical responsibility to assist those in the criminal justice system to understand and interpret current medical and scientific evidence regarding HIV.”

As some 61 countries have adopted laws that specifically allow for HIV criminalization, and prosecutions for HIV non-disclosure, exposure and transmission have been reported in at least 49 countries, we hope that by highlighting this work that other scientists and clinicians who care about “ending AIDS” around the world will take similar action.

In 2012, the Supreme Court of Canada ruled that people living with HIV can be imprisoned for having sex with a condom or while having a low (or undetectable) viral load if they have not first disclosed that they are HIV-positive. According to the court, people living with HIV have a legal duty to disclose their status to a partner if the sex poses a “realistic possibility of HIV transmission”]. The court said that “as a general matter,” a realistic possibility of HIV transmission is negated where 1) the accused has a low viral load and 2) a condom is used during the sexual act. Otherwise, in Canada, a person is at risk of prosecution for aggravated sexual assault even if they had no intent to transmit HIV and no transmission occurred.

The ruling left limited legal recourse to those working to end unjust prosecutions. Yet, several months after the decision’s release, six distinguished Canadian HIV scientists and clinicians took ground-breaking action to advance justice by co-authoring the “Canadian consensus statement on HIV and its transmission in the context of the criminal law” [“the (consensus) statement”].

This effort was born out of the belief that the application of criminal law to HIV non-disclosure was being driven by a poor appreciation of the science of both HIV as a chronic manageable disease and its risks of transmission.

Aimed squarely at the justice system and informed by HIV community, public health and human rights concerns, the consensus statement was based on a review of the most relevant, reliable and up-to-date medical and scientific evidence. It sets out in clear, concise and understandable terms a collective expert opinion about HIV sexual transmission, transmission associated with biting and spitting, and HIV as a chronic manageable condition.

One key area of consensus described in the statement is that, contrary to the Supreme Court’s interpretation, both vaginal and anal sex with a condom pose a negligible possibility of transmission, whether or not the HIV-positive partner has a low viral load. In fact, “[w]hen used correctly and no breakage occurs, condoms are 100% effective at stopping the transmission of HIV”. In addition, the statement notes that “evidence suggests that the possibility of sexual transmission of HIV from an HIV-positive individual to an HIV-negative individual via unprotected [i.e., condomless] vaginal intercourse approaches zero when the HIV-positive individual is taking antiretroviral therapy and has an undetectable viral load”.

The statement is consistent with UNAIDS’ 2013 guidance, which clearly stipulates that the criminal law should never be applied in cases of alleged HIV non-disclosure when there is no intent to harm, but especially when the risks of transmission are not significant (e.g., when a condom is used consistently, the HIV-positive person is on effective treatment or has a low viral load, or in cases of oral sex).

Importantly, the consensus statement does not employ the risk categories traditionally used in public health, which often describe activities from “high risk to no risk.” Knowing that these descriptors can contribute to an exaggerated sense of risk when taken out of context, Canadian experts described the per-act possibility of HIV transmission through sex, biting or spitting along a continuum from “low possibility to negligible possibility, to no possibility of transmission”. These unique categories better reflect that so-called “risky” activities “carry a per-act possibility of transmission that is much lower than is often commonly believed”. Also noteworthy is that the conclusions in the statement expressing scientific consensus are strong and relatively free of conditions.

In 2008, Swiss HIV experts released a statement titled “HIV-positive individuals not suffering from any other STI and adhering to an effective antiretroviral treatment do not transmit HIV sexually”. Although the statement had some success in terms of influencing criminal law around perceived HIV exposure, its bold conclusions raised concerns in the international scientific community, as some considered them premature. Others worried about their implications on condom-based safer sex messages. Mindful of this controversy, the Canadian authors emphasized that their statement is meant to inform the criminal justice system and is intended neither for public health messaging nor for the development and delivery of HIV policy and programmes. They also relied on new evidence that has since confirmed the dramatic impact of treatment on viral load and HIV transmission risk.

More than 75 HIV scientists and clinicians Canada-wide have now endorsed the statement, agreeing that “[they] have a professional and ethical responsibility to assist those in the criminal justice system to understand and interpret current medical and scientific evidence regarding HIV”.

We hope that other groups around the world will take similar action as overly broad HIV criminalization is not unique to Canada. It is estimated that some 61 countries have adopted laws that specifically allow for HIV criminalization, while prosecutions for HIV non-disclosure, exposure and transmission have been reported in at least 49 countries. UNAIDS, UNDP, the UN Special Rapporteur on the right to health, and the Global Commission on HIV and the Law have all urged that the criminal law be limited to exceptional cases of intentional transmission. But in many jurisdictions, perceived or potential exposure, regardless of intent or actual transmission of HIV, is sufficient to establish a criminal offence.

Scientific evidence, while not a panacea, can influence positive change. In 2013, based on medical evidence, a trial judge in Canada acquitted a man with an undetectable viral load who had condomless sex without disclosing his status. At the same time, Swedish scientists produced a consensus statement on HIV transmission that has since been recognized by the courts in that country. In Switzerland, the Swiss statement has supported successful law reform. In 2011, Denmark suspended the only HIV-specific criminal law in Western Europe due to improved understanding of HIV-related risks and harms. And in the United States, where most prosecutions occur, science played a crucial role in both Iowa’s HIV-specific criminal law reform and a recent ruling by the Supreme Court of Iowa, with the expectation of more changes to follow given federal recognition for the need to modernize such laws based on science.

Ensuring that criminal laws and proceedings employ the best available scientific evidence relating to HIV is critical in achieving justice whilst combating discrimination against people living with HIV. Scientists and clinicians are central to this process, as is the bold, undeniable language provided in the Canadian consensus statement.

Read or download the full text of our Viewpoint article with full references here.

South Africa: President Zuma has NOT passed an ‘HIV tattoo’ law but much of Africa thinks he has

In January 25th of this year, a South African satirical news site, satirenews.co.za, published a ‘story’ headlined, ‘Law Passed: All HIV Positive People Would Be Marked Near Their Genitals’.

The ‘story’ reads as follows:

President Zuma signed a bill that seem to be the greatest step in history of trying to combat HIV. From now on every person who gets tested and found to be HIV positive would not just get counselling and medication. They would also get a mark in a form of a tattoo near their genital according to the bill singed by the president.

“The mark is to protect those who can’t say no to sex. I mean if you can’t read between the lines you should read between the legs because that’s where the status would be tatted. The choice to be HIV positive is now in your hands or your genitals for that matter….We also encourage those who had been living with the virus to go to the nearest public hospitals to get their status tatted in”. Said Jacob Zuma after signing the bill and drinking his ARV’s.

President Zuma volunteered to be the first South African citizen to get his status tatted near his genitals and he also announced that the first 10 million people(who already tested positive) to volunteer to have their HIV statuses tatted on their genitals would be given a R50 000 funeral expense voucher…. In a country where almost every sexual active person is more likely to be HIV positive hopefully this would help.

The story was initially ignored.  But on April 23, it was repeated by a Tanzanian website as fact and within days it was disseminated throughout blogs and news sites thoughout Africa, and beyond, also as fact.

If you Google for ‘Zuma HIV tattoo law’, you’ll see that there are now more than 83,000 search results. The story also continues to be disseminated as fact on Twitter.

Not everyone believes it, thankfully, including this commenter on the original ‘satire’ site.

Screenshot 2015-06-04 18.34.38To try and understand why the story was published, I first asked colleagues in South Africa on Facebook.

One noted that “This sad spoof picks up on an old story of a Swazi MP and later a singer to tattoo the buttocks of people living with HIV.”

Another suggested that the recent wide dissemination of the story in neighbouring countries, “might be an HIV-phobic spiteful response to the xenophobic attacks in South Africa.”

I then emailed Constiutional Court Justice Edwin Cameron to ask if he had heard of the story. He kindly gave me permission to publish his responses.

Q. Why do you think Satire News wrote this story in January. 

A: I’ve never heard of this site, and heard nothing at all of this story.  It is crude and unfunny and does not succeed as satire.

Q: Why there hasn’t been any official response from either President Zuma or from HIV/human rights NGOs in SA to these rumours. 

A: The story is so utterly far-fetched and implausible that I’m sure the Presidency – if the story came to their attention at all – thought they shouldn’t deign to dignify it with a response. South Africa has been been a mainstay of just HIV laws, and of anti-criminalisation, on the African continent.

Certainly, this ’satire’ piece would not normally be worth writing about, but I am concerned that the piece (and variations of it) continue to be published as ’truth’ all over the internet, notably in other sub-Saharan African countries, whose authors often use this as justification for their own support of punishing and controlling people living with HIV.

This is especially true today as news that 13% of the world’s population living with HIV are now subject to potentially unjust prosecutions following the passage into the law of overly broad and vague statutes that criminalise HIV non-disclosure, exposure or transmission in Nigeria.

Let’s keep hoping that South Africa’s government – under the watchful eye of Justice Edwin Cameron and other civil society champions – continues to ignore calls from certain South African politicians for HIV-specific criminal laws.

What just happened in Nigeria (and close to 30 other countries across the continent) must not happen in the country with the world’s largest HIV epidemic.

 

Keynote address by Justice OBK Dingake to the SADC PF Standing Committee on Human and Social Development and special interogation of criminalisation of HIV exposure and transmission in the SADC region

The following is the keynote address by Justice Dr. Oagile Key Dingake presented to a meeting co-hosted by the AIDS and Rights Alliance for Southern Africa (ARASA) and the Southern African Development Community Parliamentary Forum (SADC PF) of the SADC PF Standing Committee on Human and Social Development and special interogation of criminalisation of HIV exposure and transmission in the SADC region, ahead of the 37th Plenary Assembly Session.

Justice Dingake has been a judge of the High Court of Botswana since 2005. He was appointed a Judge of the Residual Special Court for Sierra Leone in 2013.

The meeting was held from 27 to 28 May in Botswana and was attended by Parliamentarians from DRC, Botswana, Namibia, South Africa, Malawi, Lesotho, Seychelles, Tanzania, Swaziland, Zambia and Zimbabwe.

According to ARASA’s website:

During this meeting, which is being held with the financial support from the AIDS and Rights Alliance for Southern Africa (ARASA), Africa Capacity Building foundation, and the European Parliamentarians for Africa (AWEPA), experts will present information  before Committees  on various issues and themes to enable Members of Parliament to evaluate progress made and appreciate issues that require their action from an evidence-based and  informed basis.

Expectations are that powerful speakers who have had a marked influence on the region’s case law and human rights that include a prominent High Court Judge and academic will participate in a robust discourse organised by the Regional Standing Committee of the Human and Development & Special Programmes of the SADC PF on why criminalization of wilful transmission of HIV cannot be an option for the public health good.

Given the vexing issues that have emerged in the region on using criminal law to prevent exposure or transmission of HIV, our view is that it is important that Members of Parliament discuss this issue and are exposed to the latest, evidence-based thinking on this highly polarised issue because as elected representatives of the people, they hold sway over their constituents. Accordingly, it is our considered view that well researched presentations would expose them to the current body of knowledge with respect to criminalisation so that they lead, advocate and legislate on the basis of evidence rather than emotions.

Justice Dingake’s keynote, entitled ‘The Utility of Criminal punishment as a means of preventing the spread of HIV/AIDS in the SADC Region – Judicial Officer’s perspective’ is reproduced in full with the kind persmission of ARASA.

The Utility of Criminal punishment as a means of preventing the spread of HIV/AIDS in the SADC Region – Judicial Officer’s perspective, Hon Justice Prof. OBK Dingake

Director of proceedings, I should commence my intervention this morning by expressing my sincere gratitude to the organisers of this event for inviting me to share with this distinguished gathering of regional legislators my thoughts on the utility of criminal punishment as a means of preventing the spread of HIV/AIDS in the SADC region.

My multiple roles as a citizen of the region, Judge and an interim Co-Chair of a newly established UNAIDS Regional Think Tank on HIV, Health and Social Justice in Southern and Eastern Africa makes this intervention both a matter of duty and indeed an honour. It is not quite often that a member of the judicial arm of the State has an intellectual moment with those mandated to make laws for the good order and governance of our countries.

More than thirty years on, HIV epidemic remains one of the leading causes of death globally. Sub-Saharan Africa continues to be the epicentre of the epidemic. These days none can dare contest the link between HIV, health, human rights and the law. The link is too plain to contest.

In its watershed report titled ‘Risks, Rights and Health’, released in July 2012, the Global Commission on HIV and the Law found that legal environments can play a powerful role in the wellbeing of people living with HIV and those vulnerable to HIV. The report made it clear that good laws, fully resourced and properly enforced can widen access to prevention and health care services, improve quality of treatment enhance social support for people affected by the epidemic, and protect human rights that are vital to survival and save public money.

The report also recognises that the judiciary can play an important role in generating jurisprudence that can uphold the right of people infected and affected by HIV, more particularly key populations at high risk of HIV exposure.

I would also submit, with greatest of respect, that it is time the three arms of the State, the Judiciary, the Executive and the Legislature consider themselves partners in the area of honouring rights than protagonists. In this way, the ultimate objective of law being the welfare of society will be better served. The efficacy and or utility of criminal punishment as a means of preventing the spread of HIV has its supporters and opponents.

I wish to briefly capture or highlight the major arguments of both sides.

The case for Criminalising HIV/AIDS Transmission and special Legislation

A survey of the literature globally suggests that the arguments in favour of using criminal punishment against persons found guilty of transmitting HIV/AIDS are grounded on the retributive and deterrent functions of criminal law. It has been argued that, given the fatal and debilitating effects HIV/AIDS, the law should punish those who wilfully or recklessly transmit it to innocent victims. Those who subscribe to the philosophy of an eye for an eye, maintain that punishment can serve as an effective deterrent to others. Consequently, those who support criminalising HIV/AIDS transmission argue that criminalisation can curb the spread of HIV/AIDS by reducing new infections.

The above argument proceeds from the assumption that criminal punishment can play an important role in containing the spread of the pandemic. However, it recognises that the general criminal law is an inappropriate method for addressing HIV/AIDS transmission for a number of reasons. HIV/AIDS presents unique evidentiary problems relating to proof of a criminal transmission. This is so because not all transmissions may be criminally culpable. For example, due to the specific characteristics of HIV/AIDS – such as long period of incubation – it is not easy to prove causation and fault in certain cases of HIV/AIDS transmission.

Another crucial difficulty to successful prosecution of HIV/AIDS transmission – related cases under general criminal law lies in the defence of consent. In cases of consensual sex, it is difficult to prove deliberate intention to transmit HIV/AIDS.

In view of the evidential difficulties of proving fault, those in favour of criminalisation of HIV transmission argue that special HIV laws criminalising transmission could create offences of strict liability to avoid problems relating to proof of the intention of the accused.

The case against the use of Criminal Sanctions in HIV/AIDS prevention

Opposition to legislation criminalising HIV/AIDS rests on the general perceived ineffectiveness of criminal law in dealing with the pandemic. It has been argued that criminal sanctions intensify the spread of HIV/AIDS rather than reduce it because it encourages people to avoid HIV testing.  The obvious reason for so doing being that knowledge of HIV status could have implications for criminal liability. As a result, many people would not be able to know their status, which is crucial to HIV/AIDS prevention efforts. This may create an environment of unsafe sexual activities between partners. Research has shown that punishing HIV transmission may have adverse public health consequences.

In their research on the implications of the Scottish judgement in the case of R v Kelly, in which a man was convicted of reckless transmission of HIV/AIDS to a woman, Bird and Brown have established that a modest decline in HIV/AIDS testing could result in a one-third increase in new HIV/AIDS infections. Refraining from testing also means that many people would not be able to know whether they need anti-retroviral treatment or not. This may in turn increase the death rate associated with HIV/AIDS.

To the argument that criminalising HIV/AIDS serves a retributive purpose, opponents of criminalisation argue that the current trend in international criminal law points to a shift form a retributive model of punishment to one based on reformation and rehabilitation. The problematic nature of criminalisation of HIV transmission is more evident when considering the issue of mother to child transmission, to give but one example. Criminalisation could have the double effect of discouraging testing and driving away pregnant women from skilled health care providers for fear of criminal reprisals. This would in turn hamper efforts at reducing mother-to child transmission of HIV/AIDS, which are more successful in a context where voluntary HIV testing and public education is both encouraged. Furthermore, it will lead to a significant rise in maternal morbidity and mortality because pregnant women will resort to unskilled personnel for child delivery.

Criminalisation of mother-to-child transmission of HIV/AIDS also encourages unsafe abortions. This problem would be more acute in countries which have restrictive abortion laws and elective abortion is unavailable. This situation leaves women with two choices only – giving up their child through abortion or having the child and risking prosecution, thus clearly impinging upon women’s reproductive rights.

Another problem with criminalisation is the high risk of selective or arbitrary prosecution: Given the stigma that still surrounds HIV and the persistence of HIV-related discrimination, criminal sanctions are often directed disproportionately at those who are socially and/ or economically marginalised.

Evidentiary problems

There are serious evidentiary problems with criminalisation of HIV transmission. Providing that an accused person was HIV-positive at the time of an alleged offense, as well as providing who infected whom and when, is a serious challenge. In a sexual relationship, the one blamed for transmitting HIV will most likely be the one who first learned of his or her status, not necessarily the one who was first infected. Even if the accused person was infected first, it could have been a third party who actually infected his or her sexual partner. To prove guilt, scientific evidence of transmission by the accused person is require.

In recent years, where resources exist, prosecutors handling cases of HIV transmission increasingly have resorted to ‘phylogenetic testing’ which seeks to establish a genetic relationship between the HIV viruses of the two parties. However, such evidence only indicates similarities in the viruses; it does not prove beyond a reasonable doubt the source of the virus. Such technical evidence and its limitations are well understood by police, prosecutors, defence lawyers, courts, the media or people living with HIV or HIV organisations. Phylogenetic testing is also very expensive to apply and thus unaffordable in many low resource countries. As a result of all these factors, there is considerable potential for a conviction without sufficient evidence.

Of recent, the debate on the efficacy of criminalisation of HIV transmission has shifted against an attempt to using criminal punishment as a means of preventing the spread of HIV/AIDS. It is generally acknowledged that any criminal law response to HIV should:

  • Appropriately reflect the best and latest available scientific and medical knowledge relating to HIV;
  • Treat HIV proportionally to similar harms and risks – not singling out HIV for harsh treatment and
  • Require generally applicable criminal law principles and elements in support of any prosecution or guilty verdict.

The above principles require a harm to another person, mental culpability, proof to the appropriate standard to support a guilty verdict, and proportionality between the offence.

Experts, however concede that the use of criminal law in the context of HIV can be legitimate where there is an actual and significant harm intentionally caused to another person. UNAIDS position is that the harm can only be deemed actual and significant, thus warranting criminal prosecution, where the conduct of the person living with HIV resulted in HIV transmission.

Most constitutional and criminal law experts are increasingly concerned having regard to emerging scientific and medical evidence, about the negative impact of the overly broad criminalisation on people living with HIV, who may be charged, prosecuted and incarcerated even though they did not intend to cause harm or did not cause any significant harm.

Some sources suggest that England and Wales prosecutions are not allowed where people have not actually transmitted HIV, unless the prosecutor can prove the highest standard mental culpability, namely “intent to transmit HIV”. England and Wales does allow prosecutions for reckless transmission of HIV, but only where a serious harm has been caused to another.  A serious harm is defined as HIV having been actually transmitted to the sexual partner by the person living with HIV.

Most experts now recognise that the discovery and subsequent use of antiretroviral (ART) in the mid-to-late 1990s has resulted in a re-characterisation of HIV infection, thus significantly altering the level and degree of harm caused by HIV transmission. Though HIV infection remains a serious, lifelong and chronic health condition, it has become manageable for the majority of those on antiretroviral therapy.

It follows in my view the manner in which legislators, prosecutors and courts characterise HIV infection and the harm resulting from it for the purpose of defining criminal liability, initiating prosecution should reflect current advances in HIV treatment and the reality of living with HIV today (if an individual is on treatment and under care). The fact that treatment significantly improves the length and quality of life of people living with HIV means that HIV infection can no longer reasonably be the basis of criminal charges of “murder”, “manslaughter”, or “attempted murder”, as it appears to be in some jurisdictions.

Finally, Honourable Members of Parliament and distinguished colleagues, please allow me to conclude with a relevant quote form Honourable Henrietta Bogopane-Zulu from South Africa in 2007. She said:

In countries such as South Africa where there are still high levels of discrimination against people living with HIV, a specific law criminalising HIV transmission can never be implemented. HIV would be pushed underground. Criminalisation would defeat attempts to encourage testing and voluntary disclosure. It will also further perpetrate stigma, creating a parallel society of “us” and “them”.

Thank you.

Judge of the High Court of Botswana and Residual Special Court of Sierra Leone, Extra Ordinary Law Lecturer, University of Pretoria and Professor of Public Law, University of Cape Town. Interim Co-Chair of the Think Tank on HIV, Health and Social Justice in Southern and East Africa.

 

Repealing Section 19A: How we got there, by Paul Kidd, Chair of the HIV Legal Working Group

Australia’s only HIV-specific criminal law, section 19A of the Crimes Act in the state of Victoria, has now been repealed. This is an exciting step forward for those of us working to turn around Victoria’s poor record on criminalisation of HIV. This blog entry outlines the process we used to achieve this historic reform.

This story starts just before the 2010 International AIDS Conference in Vienna, at the first-ever HIV criminalisation pre-conference meeting, co-organised by the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV (GNP+) and NAM (who host the HIV Justice Network). Attending this meeting and hearing about the incredible work being done in this area was the inspiration for starting a joint advocacy project to address the issue here in Victoria. The partners in that project are the two largest HIV organisations in our state, Living Positive Victoria and the Victorian AIDS Council.

Our objectives were to achieve a set of prosecutorial guidelines, on a similar model to those adopted by the Crown Prosecution Service for England and Wales, and the repeal of s 19A. Although our initial focus was on the guidelines, with the announcement that Melbourne would host the 2014 International AIDS Conference, we decided to shift our focus to the repeal of s 19A. We felt that by focusing on a law that was manifestly out of step with best practice, we could use the conference to embarrass our legislators into action. With a state election due three months after AIDS 2014, we felt confident we could make political headway with the issue.

Section 19A makes it a criminal offence to intentionally transmit a ‘very serious disease’, which is defined to mean only HIV. It carries a maximum 25-year prison sentence, making it one of the most serious crimes on the Victorian statute book. It was enacted in 1993, following a high-profile case in which a prison officer in NSW was stabbed with a hypodermic syringe, and a number of cases in which blood-filled syringes were used in armed robberies.

Although the law was passed, supposedly, to deal with this kind of ‘syringe bandit’ assault, in practice it has been applied exclusively against people accused of sexual transmission of HIV. Although only a handful of cases have ever been prosecuted (and none successfully), s 19A has often been charged, or used as a threat against people accused of reckless transmission or endangerment. Its presence on the statute book has sent an unwelcome and false signal that people with HIV are a danger to public safety.

Additionally, we were armed with a solid evidence base – particularly the reports of UNAIDS and the Global Commission on HIV and the Law, which specifically criticise HIV-specific laws like s 19A.

We made a point of telegraphing our intentions to the government and opposition political parties well ahead of the conference. We developed a policy brief setting out the case for repeal of the section, and sought dialogue with both parties in the months before the conference. We wanted to give them every opportunity, at a time when the eyes of the world would be on us, to take action that would generate international attention and goodwill.

Our approach to the government was initially rebuffed, with a curt reply that they had no intention of changing the law. The Labor opposition, which had opposed the law in 1993, was more welcoming and we were able to explain our position at a number of meetings leading up to the conference. We were unable to get a commitment for action, but we were confident that both sides knew what we were asking for.

We gathered together a strong coalition of supporting organisations who agreed to back our call. As well as the HIV sector, we had support from the broader civil sector (organisations focused on human rights, mental health, gay and lesbian rights) and from the legal sector, particularly the criminal bar. We had the backing of the AIDS 2014 chairs. We spent a good deal of time before the conference drafting talking points that enabled us to get our media messaging clear, and thinking about ways to get our message out to conference delegates already being showered with slogans, messages and leaflets.

As the conference approached, however, we had no commitment from either party. We were taken by surprise when the health minister used a speech opening the ‘Beyond Blame’ HIV criminalisation pre-conference to make a commitment to ‘amend section 19A to make it non-discriminatory.’ Given the blunt ‘not interested’ we had received a couple of months earlier, this was a stunning turnaround, but still fell short of what we wanted – full repeal of section 19A. Worse, the way the announcement was phrased suggested the scope of the law could in fact be widened to include other diseases like hepatitis C – the last thing we wanted.

IMG_7441

As the conference week progressed, we continued to press our case and to highlight the need for repeal. We garnered positive press coverage following a media conference held on the opening day (even the tabloid press gave us a sympathetic hearing). The sight of thousands of protesters marching through the streets of Melbourne with signs reading ‘#REPEAL19A’ made the evening news. We publicly called on the government to clarify why they were saying ‘amend’ rather than ‘repeal’. Behind the scenes, we used every social event and reception to buttonhole politicians and push our case, highlighting the goodwill that an announcement would generate for them on the international stage. It was an exhausting week, but with each passing day we knew our opportunities were diminishing.

IMG_7443

Finally, on the last full day of the conference, the opposition Labor Party committed to full repeal of section 19A, within one year, if they won the election in November. The word came though via text message while I was sitting in a conference session on criminalisation advocacy, and I felt close to tears as I told the room what had happened. We now had commitments from both major parties, meaning reform of the law was almost assured.

Following the conference, we continued to push the government to explain how they intended to ‘amend’ section 19A and pressed our case for full repeal further. We never got an answer to our question, because the government didn’t bring the legislation forward before the expiry of the parliamentary term, then at the election there was a change of government.

The Labor Party, which had unambiguously promised to repeal s 19A, was now in government, and one of the most pleasing things about the last five months has been seeing them stick to their guns around 19A. Seeing government ministers on gay pride day carrying a banner saying ‘repeal section 19A’ was amazing.

I think the key message from our experience is that if you have an opportunity and you plan well, you can make tremendous use of it. I realise most activists won’t have the luxury of having the international AIDS conference come to their city, but hopefully other opportunities exist where local and global attention can be used to highlight inequities in the law. Building collaborations and learning from what has worked elsewhere is vital, but develop a strategy that suits your local needs and capacities.

Don’t be deterred if others disagree with your strategy – I’ve lost count of the number of times I’ve been told that criminalisation isn’t a first-order issue, or that by advocating for change we risk ‘making things worse’, or that by advocating too hard we risk getting nothing in return and pushing the issue off the agenda.

Now that s 19A is gone, our work continues. We still need to address the unacceptably high number of prosecutions for ‘HIV endangerment’ that occur in Victoria. We strongly believe we have a model that will deliver the right public health outcomes while safeguarding the public, without the use of expensive, ineffective and highly stigmatising criminal prosecutions. With the repeal of section 19A, our state government has recommitted itself to a health-based response to HIV, and we believe that gives us the best possible platform to continue our campaign for prosecutorial guidelines.

Paul Kidd (@paulkidd) chairs the Victorian HIV Legal Working Group.

Bringing Science to Justice: Beyond the Canadian Consensus Statement on HIV and its Transmission in the Context of Criminal Law

In 2012, the Supreme Court of Canada took a step in the wrong direction. The Court made a harmful decision that would have people living with HIV charged with aggravated sexual assault, jailed, and registered as sexual offenders – all this for not disclosing their status to a sexual partner, even if they used a condom or had an undetectable or low viral load. This is the case even if the positive person has no intent to harm and HIV is not transmitted.

In May 2014, some 80 scientific experts Canada-wide signed a groundbreaking consensus statement. They were concerned that scientific evidence around HIV was not correctly interpreted and understood by police, judges, prosecutors, and lawyers who work in the criminal justice system, contributing to the wide use of these harsh charges and sentences in cases of HIV non-disclosure.

Scientific evidence has a critical role to play during these criminal proceedings. Unfortunately Canada continues to see unfair prosecutions and unscientific rulings in cases of HIV non-disclosure, and criminal defense lawyers report great challenges in getting expert witnesses to testify in court. Provincial Attorneys General continue to resist calls for more restraint in pursuing prosecutions.

On April 30, the Canadian HIV/AIDS Legal Network co-hosted an ancillary event at the Annual Canadian Conference on HIV/AIDS Research (CAHR), along with the Canadian Experts on HIV and Transmission Team, and HIV & AIDS Legal Clinic Ontario (HALCO).

The event, ‘Bringing Science to Justice: Beyond the Canadian Consensus Statement on HIV and its Transmission in the Context of Criminal Law‘, provided an opportunity to examine the consensus statement in greater depth and discuss how to move forward – ultimately, to bring science to justice.

Below you will find my presentation setting the stage for the meeting, providing a global overview of the harms of overly broad HIV criminalisation, and how science has positively influenced HIV-related court rulings and criminal law on a global scale.

Although there has been no clear ‘win’ in Canadian courts so far following the Canadian consensus statement, it has real potential to positively influence developments in criminal law at home and abroad.

Two of the leaders who originated the consensus statements were Drs. Mark Tyndall and Mona Loutfy. In the statement, the authors cite their professional and ethical responsibility to assist those working in the criminal justice system so that these actors may better understand and interpret the current medical and scientific evidence. At this ancillary event, Dr. Tyndall recounted his experience testifying as a medical expert before the court.

Cécile Kazatchkine, Senior Policy Analyst at the Canadian HIV/AIDS Legal Network, noted that the consensus statement has been shared with many key players in the criminal justice system, medical experts, and the public.

Criminal defense lawyer Jonathan Shime, who has extensive experience working on cases of HIV non-disclosure, urgently called upon medical experts to testify before the courts.

The consensus statement is a very important tool for medical experts and lawyers to bring science to justice. As science evolves so, too, must the criminal law. Punishing people living with HIV who have an undetectable or low viral load, or use a condom, is not the answer.

The consensus statement can be found here.

Presentation: Bringing Science to Justice.

Greece: Repeal of Health Decree 39A must be followed by further initiatives to protect human rights and to reverse the HIV stigma left on Greek society and political life

Guest blog post by the production team of Ruins: Chronicle of an HIV Witch-Hunt

An official repeal of Health Decree 39A has been published on the Official Journal of the Hellenic Republic as of Friday, April 17. The decree led to the case chronicled in our documentary which involved the mandatory testing and prosecution of a group of HIV-positive women, most of them injecting drug users, in a 2012 police operation in central Athens.

The minister of health P. Kouroumplis has signed a repeal of the decree’s reinstatement by Adonis Georgiadis in July 2013 (a month after it was first repealed by former deputy minister Foteini Skopouli).

Health decree 39A was an attempt by our former governments to distract the Greek public -with the help of the media- from the disastrous effect of their inhumane austerity policies.

The decree has had many victims. Firstly, the women that were targeted three years ago, as well as those among them who are still facing trial in the Greek courts. The signing of the decree was also followed by the victimization of thousands of people including women, men, Greek citizens and migrants, victims of trafficking, injecting drug users and members of the LGBT community, who were rounded up and violated through mandatory blood tests during the original police operation by former ministers Loverdos and Chrysochoidis, as well as in later operations such as Xenios Zeus.

The decree launched a mass, organized campaign of misinformation that continues to this day and promotes irresponsible and unacceptable generalizations about the HIV virus and AIDS (the disease that is caused by the virus in the absence of treatment).

Its supporters promoted the view that mandatory exams, criminal prosecution and the scapegoating of vulnerable populations is a valid public health tactic in spite of a lack of evidence to support this claim and the ever-increasing international concern that such tactics of repression have the opposite of the desired effect on public health.

Decree 39A and the women’s arrests also put Greece on the shameful world map of countries that have criminalized HIV, and was widely condemned by UNAIDS among many international organizations and renowned scientists and experts.

The repeal of 39A must be followed by further initiatives to protect human rights and to reverse the stigma it has left on our society and political life. Our institutions must address with resolve any attempts from anyone in a position of power to repeat similar actions inspired by 39A, that could risk the life and well-being of vulnerable people.

We in the production team of the documentary Ruins: Chronicle of an HIV Witch-Hunt, wish to thank the members of all those organizations and initiatives, who fought for the repeal of the decree and who have made efforts to keep the public informed about the relevant issues for the past three years, as well as for their ongoing support to the victims.

HIV Justice Network’s response to the Law Commission’s Scoping Review of the law in England & Wales that is used to prosecute ‘reckless’ and ‘intentional’ HIV/STI transmission

Today was the deadline for responses to the scoping consultation of the reform the Offences Against The Person Act, undertaken by the Law Commission.

This is the law in England and Wales that is currently used to prosecute people living with HIV (and occasionally other sexually transmitted infections; one each so far for gonorrhoea, hepatitis B and genital herpes) for ‘reckless’ or ‘intentional’ transmission, as grievous bodily harm.

The review is extremely thorough for a scoping exercise – i.e. this isn’t the full review, but a review of whether a full review is necessary!

It even spends quite some time highlighting some of the many reasons why overly broad HIV criminalisation is problematic including:

  • Difficulties with the current interpretation of subjective recklessness.
  • Complexities of proving timing and direction of transmission.
  • Appreciating that the people most likely to be a public health threat – those untested and untreated – are not liable under the law.
  • Using the criminal law for a public health issue, is “counterproductive in public health terms and contributes to the marginalisation of minority groups”, doing more harm than good.

The paper then offers a ready-made solution, already prepared back in 1998: a draft bill that would make only intentional disease transmission a crime and reverse all the decisions in Dica and Konzani in 2003-5 that resulted in the current legal situation.

  1. In the draft Bill, clause 15 provides that:(2) Physical injury does not include anything caused by disease but (subject to that) it includes pain, unconsciousness and any other impairment of a person’s physical condition.(4) In its application to section 1 this section applies without the exceptions relating to things caused by disease.Accordingly, the effect of adopting the draft Bill as it stands is that:
    1. (1)  there would be criminal liability for the intentional transmission of disease amounting to serious injury, but
    2. (2)  there would not be criminal liability:
      1. (a)  for the reckless transmission of serious disease, or
      2. (b)  for the intentional or reckless transmission of any disease that is not serious.
      This would reverse the decision in Dica and approximately reinstate the law as it stood in 1998.

Nevertheless, it also suggests all kinds of possibilities, including creating a new law that would criminalise non-disclosure, or potential or perceived exposure, just to be balanced. Fortunately, it goes on to suggest that this isn’t necessarily the way forward, despite asking some rather pointed and misleading questions about such an approach in its consultation questions.

Below is full the response from the HIV Justice Network, noting that:

  • The scoping paper did an excellent job summarising the problems and policy issues relating to the overly broad use of the criminal law in relation to sexual disease transmission (see 6.36-6.58).
  • I do not see why, notwithstanding the concerns raised at 6.68 (“it would go further than required to meet [UNAIDS] recommendations”) the wording of the draft Bill could not be adopted as it stands, so as to exclude disease from the definition of injury except for the purposes of the offence of intentionally causing serious injury.
  • Given the detailed overview of the problems and policy issues relating to the overly broad use of the criminal law in relation to sexual disease transmission (6.36-6.58), the lack of complete consensus by the minority of “professionals in the relevant fields” does not suggest to me that there needs to be further examination of the “consequences for public health policy and the broader ethical question of whether public health considerations should be the main policy factor.” It is evident to me – and UNAIDS and most other informed, clear thinking experts on this issue – that if the criminal law in this area does not consider public health above and beyond any other consideration (i.e. deterrence, punishment, ethical norm creation) then it does more harm than good.
  • So far, England and Wales has led the world in the development of policy in this area (in the absence of legislation limiting the overly broad use of the criminal law) with the creation of prosecutorial and police guidance. It would be disastrous to the global standing of England and Wales as both a leader in pragmatic policy, and in supporting the public health and human rights of developing countries through investment in HIV and health systems via DFID, if the law relating to sexual transmission of disease were expanded to include, for example, prosecutions for non-disclosure or potential or perceived exposure.

HIV Justice Network Law Commission OAPA 1861 Scoping Consultation Response by HIV Justice Network

Read the Law Commission OAPA 1861 Scoping Review: Chapter 6, Disease Transmission