Two weeks ago, thanks to generous funding for 2016-18 from the Robert Carr civil society Networks Fund, a group of committed activists from all over the world came together in Brighton, the home of the HIV Justice Network, so we could strategise how to work closer together in order to end HIV criminalisation.

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It’s been a long journey to get to this point.  I first started writing about HIV criminalisation in 2003 when, in my first months as editor of NAM’s AIDS Treatment Update, we had our first prosecutions in England and Wales for ‘reckless’ HIV transmission.

After writing my first book on the subject for NAM in 2007 – Criminal HIV Transmission, which aimed to educate the criminal justice system about the latest medical and social science developments relating to HIV – I began a blog of the same name which, almost by accident, became a global de facto information and advocacy hub.

In 2008, on the final day of the International AIDS Conference in Mexico City, Justice Edwin Cameron gave a powerful speech entitled ‘HIV is a virus not a crime’ that vocalised a burgeoning movement using many examples culled from the blog. At its rousing conclusion, he called for a sustained and vocal campaign that would lead to major international pushback against misguided criminal laws and prosecutions.

I took Justice Cameron’s call to action utterly and complelely to heart, and have made this the focus of my life’s work ever since: highlights of which include writing a second book for NAM in 2010; working with UNAIDS on their 2013 guidance; and, of course, launching the HIV Justice Network.

Today, marks a new milestone for my vocation. As part of a group of seven global, regional and national civil society organisations that have worked closely, but informally, together on HIV criminalisation for a number years, I can proudly announce a brand new initiative, HIV JUSTICE WORLDWIDE.

HIV JUSTICE WORLDWIDE comes at a time when there is an urgent need to capitalise on current advocacy successes in some parts of the world and to resist new and proposed laws in others. It is also evident that preventing and remedying HIV criminalisation is going take many years, if not decades, and so we need to work together because:

• HIV criminalisation is an international issue, having grown in scope and severity over the last two decades;
• international actors such as UNAIDS, UNDP, the Global Commission on HIV and the Law and others have been – or need to be – involved in this issue, and civil society needs to be able to effectively engage with these actors;
• international pressure can often be helpful in responding to problematic regional or national developments; and
• a global movement can help raise awareness and build capacity of local actors around the world by sharing knowledge, experience, strategies, tools and mobilising resources.

The organisations that make up the founding partners, along with the HIV Justice Network, are:

• AIDS and Rights Alliance for Southern Africa (ARASA)
• Canadian HIV/AIDS Legal Network
• Global Network of People Living with HIV (GNP+)
• International Community of Women Living with HIV (ICW)
• Positive Women’s Network – USA (PWN-USA)
• Sero Project (SERO)

We also have the support of UNAIDS and UNDP and global HIV organisations such as the International HIV/AIDS Alliance. As time goes on we will will announce new projects and partners – all with the goal of ending HIV criminalisation by empowering people living with HIV and those who advocate on our behalf to ensure policymakers, criminal justice actors and other relevant stakeholders abolish existing laws and oppose the passage of proposed laws designed to regulate, control, and punish people living with HIV on the basis of their HIV status.

HIV JUSTICE WORLDWIDE will enhance and build on contributions its founding partners have previously made: monitoring, informing, connecting and engaging with People Living with HIV networks, civil society organisations and others who advocate against HIV criminalisation, and engaging policy-makers in pursuit of protecting against HIV criminalisation.

The initiative allows us to:

• Avoid duplication by bringing together the many existing resources on this issue, sharing information and coordinating advocacy efforts.
• Build broader consensus amongst People Living with HIV networks, civil society, policymakers, key scientists/clinicians, criminal justice actors and funders that ‘ending AIDS’ will not happen unless we put an end to HIV criminalisation.
• Create new energy and action, ‘riding the wave’ of recent advocacy successes, pushing for commitment to change at the highest level.
• Develop and strengthen much-needed civil society capacity to ensure continued advocacy against HIV criminalisation, and to sustain this capacity in order to further advocate against related punitive laws, policies and practices aimed at people living with HIV and which impede the HIV response.

To find out more about what HIV JUSTICE WORLDWIDE is all about, please visit the website, and watch the video.

Last week, at the 15th European AIDS Clinical Society (EACS) Conference in Barcelona, I presented a poster on behalf of the HIV Justice Network, that showed where the prevention benefit of treatment has impacted HIV criminalisation in Europe. The reality is that since the Swiss statement in 2008, progress has been frustratingly slow.

During the 30-month period covered by the forthcoming Advancing HIV Justice 2 report (April 2013 to October 2015), we found a total of 176 reported arrests and/or prosecutions in 24 countries. Of these, 37 (21%) were in Europe: Austria, Czech Republic, England & Wales, Finland, France, Germany, Iceland, Ireland, Italy, Russia, Slovakia, Spain, Sweden and Switzerland. Where laws, practices or legal precedents are outdated there is an urgent need for reform in line with UNAIDS 2013 guidance.

Although there have been some positive developments in many of these jurisdictions – where lower or even regional appeal courts have accepted the new science – few have clear, established legal guidance at the highest level regarding the prevention impact of treatment, and therefore unjust prosecutions continue. There is, therefore, an urgent need for scientists and clinicians to work closely with HIV and human rights activists, advocates and lawyers in Austria, Finland, France, Germany, Iceland, Ireland, Italy, Russia, Slovakia and Spain to ensure that either the law itself, or legal precedent and/or prosecutorial guidance reflects up-to-date science on HIV-related risk (and harm).

The abstract is below.  The e-poster can be read online or the poster as displayed at the conference can be read and downloaded as a pdf.

Issues

The additional prevention effect of antiretroviral therapy (ART) has the great potential to beneficially impact the HIV epidemic as well as the lives of people living with and at risk of HIV. However, criminal justice actors and law- and policymakers are still coming to terms with this “game changing” scientific advancement. Their reactions have the potential to either improve or harm both the HIV response as well as the human rights of people living with HIV.

Description

A desk review of criminal proceedings, policy documents and newspaper reports archived on the HIV Justice Network website (www.hivjustice.net) as part of the research for our forthcoming Advancing HIV Justice 2 report was undertaken to better understand the criminal law implications of increased knowledge and awareness of the additional prevention benefit of ART as they relate to laws, prosecutions and policies related to HIV non-disclosure, potential or percived exposure and/or transmission. .

Lessons Learned

The impact of viral load on infectiousness has resulted in a number of European jurisdictions revising or revisiting their HIV-related criminal laws or prosecutorial policies. The Netherlands was the first country to consider low viral load as a factor in assessing HIV risk in 2005, resulting in the essential decriminalisation of all but intentional exposure or transmission. Following the ‘Swiss Statement’ published in January 2008 a small number of courts, governments and prosecutorial authorities have accepted ART’s impact on reducing HIV-related sexual risk. These include: Geneva Court of Justice, Switzerland (2009); Denmark Ministry of Justice (2011); Crown Prosecution Guidance for England and Wales (2011); Crown Office and Procurator Fiscal Service Guidance for Scotland (2012); the Court of Appeal for Skåne and Blekinge, Sweden and Swedish Ministry of Health and Social Affairs (2013), and the Czech Republic Supreme Court (2015).

Next steps

UNAIDS guidance (2013) notes: “Where criminal liability is extended to cases that do not involve actual transmission of HIV, such liability should be limited to acts involving a “significant risk” of HIV transmission. The determination of whether the risk of HIV transmission from a particular act is significant should be informed by the best available scientific and medical evidence.” It is vitally important that criminal justice system actors and law- and policymakers are educated so that HIV-related criminal laws and policies are applied rationally and fairly .Scientists and clinicians must, therefore, work more closely with HIV and human rights activists, advocates and lawyers in jurisdictions where the prevention impact of ART is not currently legally recognised, in order to prevent miscarriages of justice and to ensure that the prevention benefit of ART is correctly understood by criminal justice actors, policymakers, the media and those most at risk.

Bernard EJ. “One Shouldn´t Convict People for Hypothetical Risks”: Developments in European Criminal Law an… by HIV Justice Network

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.

However, 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.

Missouri police, prosectors and media need to be told that this is unconstitutional, barbaric and completely unacceptable!

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.

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.

To 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.

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.

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.

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.

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.