New UNAIDS report summarises key developments in the legal environment for HIV responses in Asia Pacific region

Legal and policy trends impacting people living with HIV and key populations in Asia and the Pacific 2014–2019

This report provides a summary of key developments in the legal environment for HIV responses in Asia and the Pacific. It is the product of a desk review conducted for UNAIDS and the United Nations Development Programme (UNDP) in 2019. The report highlights key trends and developments in laws affecting people living with HIV and key populations in Asia and the Pacific over the five-year period 2014–2019. It updates the legal and policy review conducted in 2016 for UNAIDS, UNDP and the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP). A database of laws of the 38 Member States of ESCAP was created as part of this review. The database identifies laws that are either punitive or enabling for people living with HIV and key populations in Asia and the Pacific. A summary of the findings is presented in Annex 1. An overview poster is also available.

The report can be downloaded here.

US: Ending Criminalization of HIV is among Equality Virgina’s legislative priorities for 2021

Equality Virginia outlines 2021 legislative agenda

Equality Virginia Executive Director Vee Lamneck on Monday announced HIV decriminalization is among their organization’s legislative priorities during the 2021 legislative session that begins this week.

“Virginia is one of 37 states with outdated laws targeting and punishing people based on their HIV positive status,” they said during a Zoom call.

According to the Centers for Disease Control and Prevention, these states with laws criminalizing HIV exposure were implemented during the early years of the epidemic to discourage risky behavior leading to transmission, promote safer sex practices and in some instances receive funds to support HIV prevention. The CDC, however, states many of these laws “are now outdated and do not reflect our current understanding of HIV.”

Cedric Pulliam and Deidre Johnson, co-founders of Ending Criminalization of HIV and Over-incarceration in Virginia, support Equality Virginia’s efforts to decriminalize HIV transmission in the state.

“These laws disincentivize testing, deepen community distrust of public health institutions and put people living with HIV at heightened risk of intimate partner violence,” Pulliam told call participants. “Someone can be bit or spit on and they can go to court on that and we know that’s not how transmission occurs.”

Senate Bill 1138, the proposed HIV decriminalization law, is one of eight bills for which Equality Virginia and state legislative sponsors are encouraging public support once the General Assembly convenes on Wednesday. They include an LGBTQ panic defense ban, second-parent adoption protections and an effort to amend the state constitution to affirm marriage equality.

Virginia voters in 2006 approved an amendment to the state constitution to ban same-sex marriages and unions, though the U.S. Supreme Court’s 2015 Obergefell decision rendered the change unconstitutional.

State Sen. Adam Ebbin (D-Alexandria) and state Del. Mark Sickles (D-Alexandria), like others, are concerned with U.S. Supreme Court Justices Clarence Thomas and Samuel Alito’s comments last October that challenged the Obergefell ruling and support amending the state constitution again to affirm marriage equality.

Sickles told attendees on Monday’s call he supported the bill to repeal the marriage amendment, and the two-year amendment process it would initiate because of the conservative makeup of the U.S. Supreme Court and “we don’t know where they are going to go right now.”

However, he felt confident the legislation would pass the 2021 session and make its way to Virginia voters in 2022 when they will vote to affirm marriage equality in the state’s constitution.

“The way Americans think about this fundamental right,” Sickles said. “We should get an overwhelming majority in 2022.”

Lamneck said it was important to remove the ban on marriage equality from Virginia’s legal code and from the state constitution “which is a reflection of Virginia’s values.”

Equality Virginia and state Del. Mark Levine (D-Alexandria), who is running to be the state’s first openly LGBTQ lieutenant governor, also support repealing a “conscience clause” enabling religious-based adoption agencies to discriminate against qualified LGBTQ families.

Ted Lewis, the executive director of Side-by-Side, a Virginia organization supporting homeless LGBTQ youth, said they were excited to support Equality Virginia’s full legislative advocacy agenda. Lewis specifically looks forward to mobilizing around second-parent adoption, more LGBTQ-inclusive family life curriculum, and the repeal of the “conscience clause” exemption.

Many of the other advocates and supporters on the call used a virtual poll to signal their support for a ban on the so-called panic defense.

Sponsored by state Del. Danica Roem (D-Manassas), this legislation would prevent a defendant from blaming violence or murder on the victim’s sexual orientation or gender identity. 

“For Black or brown trans women, we know this is more likely to happen in court that the perpetrators would say the violence was okay because they were LGBTQ,” Equality Virginia Program Director Thalia Hernandez told participants. “It is unacceptable that this is still happening in Virginia and we need to make sure that it is not happening any more.”

Hernandez was pleased to see many of the measures promoted by Equality Virginia were being supported by attendees via the poll, including protections for LGBTQ seniors and Gov. Ralph Northam’s proposed expansion of Medicaid coverage to include transgender health care services.

UK: The criminal law around HIV transmission has failed to keep pace with social and scientific change

Laws around HIV transmissions need urgent update

The criminal law in relation to HIV transmission has not kept up with the science, according to a team of researchers based at Oxford Brookes, Northumbria and Kingston universities.

Alex Powell, Teaching Fellow in Law at Oxford Brookes University said: “The criminal law has continued to frame HIV in terms of personal responsibility and bodily autonomy within the dominant narratives of danger, disease, and out-dated science. Doctrinal law has failed to keep pace with social and scientific change.”

HIV and the Criminal Law

At present, there is no specific law or Act of Parliament in England and Wales that explicitly addresses the subject of HIV transmission. Nonetheless, the criminalisation of HIV has become the subject of growing academic and policy debate. Falling under the scope of the Offences Against the Person Act 1861, the criminal law has established that HIV transmission can constitute an offence of Grievous Bodily Harm (GBH). 

In the article, the researchers considered the changing social and scientific landscape associated with condomless sex, to re-evaluate the development of law in this area, concluding that:

  • The criminal law in relation to HIV transmission has not kept up with the science.
  • If the purpose of HIV transmission is to prevent or regulate ‘serious harm’ (GBH), this definition should be supported by current research rather than outdated fear. The law may be contradictory on these terms by further contributing to medical and social harms such as stigma.

Chris Ashford, Professor of Law and Society at Northumbria University also commented: “The experiences of people living with HIV have been transformed over recent years. Advances in medical science have made the virus a manageable chronic condition, while eliminating the risk of onward transmission for those with access to treatment, something referred to as TasP (treatment as prevention) or U=U (undetectable equals untransmissible).”

Max Morris, Lecturer in Criminology at Kingston University added: “Through the reframing of HIV transmission as an act of harm, criminalisation also implicates the positive partner as a ‘vector of disease’. In doing so, we argue that the language of law diminishes the humanity of HIV positive people by re-constituting them as a ‘danger’ or ‘threat’ to (‘innocent’) HIV negative people.”

The study is published in the Journal of Criminal Law, titled ‘Bareback Sex in the Age of Preventative Medication: Rethinking the “Harms” of HIV Transmission’. 

Year in review: Celebrating successes, highlighting the many challenges ahead

This past year has shown us what happens when one pandemic –  HIV – is overshadowed by another pandemic, COVID-19.  Despite the many lessons learned from our collective advocacy against HIV criminalisation that we and our HIV JUSTICE WORLDWIDE partners highlighted in March, these lessons were mostly ignored by policymakers around the world.

The result was a series of knee-jerk legal, policy and police responses leading to the overzealous policing of people living with HIV and other key and inadequately served populations already subject to existing inequalities in law and policy, which we have been highlighting in our HIV Justice Weekly newsletter since March.

This latest pandemic overshadowed, and in some cases undermined, the work we and others have been doing to ensure a fair, just, rational and evidence-based response towards people living with HIV by the criminal justice system.

This past year we documented at least 90 cases of unjust HIV criminalisation in 25 countries, with Russia and the United States being the worse offenders.  Women living with HIV were accused in 25% of those cases. Three of these cases were for breastfeeding.  In the United States, more than 50% of those accused in HIV criminalisation cases were people of colour.  

2020 also saw Poland passing a new law against COVID-19 that also increased the criminal penalty for HIV exposure, and number of disappointing HIV criminalisation higher court appeals in the US (Ohio), and Canada (Ontario and Alberta) that appeared to ignore science over stigma.

And yet, despite the many difficulties of 2020, the movement to end unjust HIV criminalisation has continued to gain momentum.

In the United States, Washington State modernised its HIV-specific criminal law in March, reducing the ‘crime’ from a felony to a misdemeanour, adding in a number of defences, and eliminating the sex offender registration requirement.  Earlier this month, legislators in Missouri published plans to modernise its HIV-specific criminal law next year.

In Europe, Sweden abolished the legal requirement to disclose HIV status in March, the Spanish Supreme Court set an important precedent for HIV criminalisation cases in May, and in June, Scottish police ended the stigmatising practice of marking people living with HIV as ‘contagious’ in their database.

In Francophone Africa, HIV-specific criminal law reform in Benin and across the region is looking likely thanks to a recognition that existing laws do not reflect up-to-date science.

And in Eastern Europe and Central Asia, a process to completely abolish the draconian HIV-specific criminal law in Belarus has begun.

There is still so much more to do, however.  Despite these successes, as well as the many milestones the HIV JUSTICE WORLDWIDE movement has achieved since its launch in 2016, we will not rest until everyone living with HIV in all their diversity is treated equally, fairly and justly by all actors of the criminal justice system.

Belarus: Process to abolish HIV criminalisation statutes in Belarus criminal code has been launched

On improvement of the Criminal Code of the Republic of Belarus and the exclusion of Article 157 “HIV infection”

Translation via Deepl.com – For article in Russian, please scroll down.

People PLUS in action

The legal environment for HIV-positive people will be further improved. The process has been launched. On the eve of December 1 a letter from the Deputy Chairman of the Permanent Commission on National Security of the House of Representatives of the National Assembly of the Republic of Belarus A.V. Dubov was received by the Public Association “PLUS People”.

“I would like to inform you that the proposals to make amendments to the Criminal Code of the Republic of Belarus in the part of abolishment of articles 157 and 158 that were received from the Ministry of Health of the Republic of Belarus in my address have been considered together with interested state bodies. Proposals to repeal Articles 157 and 158 have been sent for consideration and taken into account in the course of finalizing the draft laws.

Proposals to amend the Criminal Code were formed at the Round Table “Maintenance of the status of elimination of HIV transmission from mother to child. Amendments to the Criminal Code of the Republic of Belarus in the part of abolition of articles 157 and 158”, which was held on September 28, 2020 with the participation of Deputies of the House of Representatives of the National Assembly of the Republic of Belarus, the Deputy Minister and heads of departments of the Ministry of Health of the Republic of Belarus, country offices of UNAIDS and WHO, the Republican associations of the Belarusian Red Cross Society and Public Association “PLUS People”.

In their presentation, “PLUS People” RSO told the participants of the Round Table about the benefits that the improvement of legislation will bring to society.

“The qualification of crimes related to HIV infection, not according to a special article, but according to the articles for harm to health and how the cases of private and public prosecution will develop in the society a culture of caring about each person’s own health and measures to prevent HIV infection and other diseases”.

People will no longer be afraid to know their HIV status and will be bravely tested for HIV.

People living with HIV:

After learning the diagnosis, they will not avoid being registered at the dispensary.
be able to exercise their right to establish a family and have children without fear
will not be victims of blackmail, extortion and intimidation
We express our gratitude to the brave people who dared to tell the audience of the Round Table their life stories about how they faced stigma and discrimination, thereby confirming and strengthening the arguments for the exclusion of Article 157 from the Criminal Code of RB, cited by ROO “PLUS People”.


О совершенствовании Уголовного кодекса РБ и исключении ст. 157 «Заражение ВИЧ»

Правовая среда в отношении ВИЧ-положительных людей будет дальше совершенствоваться. Процесс запущен. Накануне 1 декабря в адрес РОО “Люди ПЛЮС” пришло письмо от Заместителя председателя Постоянной комиссии по национальной безопасности  Палаты представителей Национального собрания Республики Беларусь А.В. Дубова.

«Информирую о том, что поступившие из Министерства здравоохранения Республики Беларусь в мой адрес предложения о внесении изменений в Уголовный кодекс Республики Беларусь в части отмены статей 157 и 158 рассмотрены совместно с заинтересованными государственными органами.Принимая во внимание, что в Министерстве юстиции Республики Беларусь создана межведомственная рабочая группа по подготовке проектов кодексов об уголовной ответственности, в рамках деятельности которой предполагается изучение основных направлений совершенствования Уголовного, Уголовно-процессуального и Уголовно-исполнительных кодексов. Предложения в части отмены статей 157 и 158 направлены для рассмотрения и учета их в ходе доработки законопроектов».

Предложения о внесении изменений в Уголовный кодекс были сформированы на Круглом столе «Поддержание статуса элиминации передачи ВИЧ от матери ребёнку. Внесение изменений в УК РБ в части отмены статей 157 и 158», прошедшем 28 сентября 2020 г. с участием Депутатов Палаты представителей Национального собрания Республики Беларусь , Заместителя Министра и руководителей управлений Министерства здравоохранения РБ, страновых офисов ЮНЭЙДС и ВОЗ, Республиканских объединений «Белорусского Общества Красного Креста» и РОО «Люди ПЛЮС».

РОО «Люди ПЛЮС» в своей презентации рассказывали участникам Круглого стола о том, какую пользу совершенствование законодательства принесёт обществу.

«Квалификация преступлений в связи с заражением ВИЧ , не по специально выделенной статье, а по статьям за причинение вреда здоровью и, как дела частного и частно-публичного обвинения будут развивать в обществе культуру заботы каждого человека о собственном здоровье и мерах профилактики заражения как ВИЧ-инфекции, так и других заболеваний».

Люди перестанут боятся узнать свой ВИЧ-статус и будут смело тестироваться на ВИЧ. 

Люди, живущие с ВИЧ:

  • узнав диагноз, не станут избегать постановки на диспансерный учёт
  • без страха смогут реализовывать право на создание семьи и рождение детей 
  • не станут жертвами шантажа, вымогательства и запугиваний

Выражаем благодарность смелым людям, которые решились рассказать аудитории Круглого стола свои жизненные истории, о том как они столкнулись со стигмой и дискриминацией, тем самым подтверждая и усиливая аргументы за исключение ст. 157 из УК РБ, приведённые РОО “Люди ПЛЮС”.

 

Canada: Ontario’s sex offender registry needs further amendments

How should Ontario’s sex offender registry work?

Ontario’s sex offender registry has some soul searching to do. Does it exist to punish offenders, or protect communities? And how can the framework for who goes on the list, which the Supreme Court has ruled discriminatory, support this core objective?

The government has one year to amend Christopher’s Law, named for 11-year-old Christopher Stephenson, who in 1988 was tragically abducted, assaulted and murdered by a known pedophile. A coroner’s jury recommended creating an electronic registry of sex offenders to help police target their neighbourhood searches during the critical hours after a child goes missing.

The legislation received all-party support when tabled by the Harris government in 1999. Members touted the wide net cast by the proposed registry — the first of its kind in Canada — avowing: “Even those offenders who have received absolute or conditional discharges would have to register, with no exceptions.”

That tough talk eventually gave way to reasonable “exit ramps,” providing avenues to stay off the registry if an absolute discharge is given, or to be removed if a record suspension or pardon is granted. That makes sense if the registry’s goal is protection. If it’s not in the public interest for an individual to have a criminal record, how would their presence on a registry help investigators solve any crimes?

When an offender is deemed not criminally responsible (NCR) as a result of a mental disorder, those same considerations may exist. Yet, even with an absolute discharge, these individuals have no way to get off the registry. The discrepancy amounts to discrimination, the Supreme Court ruled last week, upholding a 2019 ruling by the Ontario Court of Appeal.

The charges originated when a man experienced a single manic episode after the 9/11 terrorist attacks. He was found NCR, and received an absolute discharge, yet was placed on the sex offender registry for life. In the years since, he has managed his mental health disorder and committed no further crimes. The victim, his ex-wife, supported his bid to be removed from the registry.

The ruling doesn’t mean every NCR offender should be left off the registry; there’s no evidence suggesting that would serve public safety. But there’s equally no evidence they automatically belong on the registry, perhaps for life, with no consideration of their actual risk of reoffending.

As legislators take another pass at these “exit ramps,” they should think about another group whose presence on the sex offender registry is of questionable value to community safety.

In Canada, people can still be prosecuted for having sex without disclosing they are HIV positive, even when condoms are used diligently and there is no realistic chance of transmission. Failure to disclose invalidates consent, turning otherwise consensual encounters into sexual assault.

The law is a holdover from the days when HIV was considered a death sentence. Canadian courts are slowly recognizing a suppressed viral load makes the virus untransmissible. But they’ve been slower to accept broad scientific consensus that correct condom use also negates any realistic possibility of transmission. Federal prosecutors in the territories are no longer pursuing such cases. But the Ontario Court of Appeal upheld a conviction just this summer.

Men and women who are reluctant to disclose they have HIV, but take diligent measures to prevent transmission, are not aggressors or a threat to public safety. Placing them on a sex offender registry for life does nothing to protect communities from predatory behaviour, nor does it help police knock on the right doors when children go missing.

If the sex offender registry exists to protect, not punish, that’s how it should really work.

AFRAVIH symposium devoted to stigma and discriminatory measures in times of Covid-19 and relevant lessons from the HIV Response

No contradiction between human rights and public health

Google translated extracts from an article published in Seronet on November 11, 2020.  The full article in French can be accessed here: https://seronet.info/article/pas-de-contradiction-entre-droits-humains-et-sante-publique-88959

From November 8 to 11, 2020, Dakar hosted the tenth AFRAVIH conference. The 2020 edition, held virtually, was as rich and dense as in previous years. To return on the strengths of the second day: UNAIDS symposium devoted to discrimination, Covid-19 as a possible “chronic disease” and social sciences, societies and behaviours.

In addition to plenary sessions and numerous thematic sessions, the program for each edition of Afravih is supplemented by symposia organised by major international and non-governmental institutions. November 9 thus proposed, at the end of the day, a symposium of UNAIDS, the wing of the United Nations responsible for the fight against AIDS. This year, the UN agency has chosen to work on “stigma and discriminatory measures in times of Covid-19: the relevant lessons learned from the response to HIV”. In this case, it was not only a question of discussing the subject, but also of including recommendations and proposing “an action plan against stigma” at the end of the conference. 

Roots of stigma and discrimination

“Stigma is unfair treatment, based on negative representations based on identities and in particular the fear of death. It conveys devaluation ”, suggests the definition of Erving Goffmann, theorised in the 1960s. As Auguste Didier Blibolo (human sciences researcher) reminded us, AIDS has been presented as a disease of death and of “unsavoury” people with “socially condemned behaviour”. Initially, the vision was that of a disease of people who had deviant sexual behaviour. And this was associated with the ignorance of the modes of transmission. For the researcher, there are comparable situations between the two pandemics, but to a lesser extent with Covid-19 which is a few months old compared to the HIV pandemic which has lasted for 40 years. One of the possible levers to change this is to raise awareness through the communication of people living with HIV. That is, the public and voluntary affirmation of one’s serological status. Another is to favour the Positive Health Dignity Protection (SPDP) strategy. Its aim is to improve the dignity, quality and longevity of people living with HIV. If this principle is realised, it should have a far-reaching and beneficial impact on communities of people living with HIV, their partners and families. As it has been thought, especially by activists, “Positive Health, Dignity and Prevention” recognises and covers all issues of health and social justice for people living with HIV. It espouses the “fundamental principles that responsibility for HIV prevention should be shared and policies and programs for people living with HIV should be designed and implemented with the meaningful participation of people living with HIV”.

Measuring stigma against vulnerable people

“The fight against stigma and discrimination is a process”, immediately recalled Dr. Ramatoulie Jallow (Yaounde, Cameroon). “We must therefore recognise that social change takes time. The HIV epidemic has taught us that the responses given by communities are the most effective, in particular to fight against discrimination and the stigma experienced by populations and that these responses lack funding, ”she explained. “Today, the crisis due to Covid-19 reminds us of these phenomena of discrimination and stigmatisation of patients. As with HIV, patients with Covid-19, or those who are suspected of being ill, are kept at a distance. The difference with HIV is in the level of information. At the start of the AIDS epidemic, there was no such international dimension, this dimension of community and especially not this feeling that everywhere in the world we are affected by the same pandemic at the same time ”.

The stigmatisation of people living with HIV and people with Covid-19 (and the discrimination to which they are victims) is therefore comparable, but to a lesser extent concerning the latter. For example, the self-discrimination of people living with HIV appears to be stronger. It is true that it is still little studied for people with Covid-19. And Ramatoulie Jallow concluded that in 40 years of the HIV pandemic, it is the community response that has proven to be “the most effective”; All that remains today is to put the necessary funding to make it even more effective and not only for HIV.

It is in the field of “human rights in times of pandemic” and especially on the question of “containment, rights and lessons learned from HIV in the response to Covid-19”, that Mianko Ramaroson intervened (UNAIDS). The expert reported people stopping taking ARVs due to confinement conditions, instances of rights violation, an increase in acts of violence against women and children (+40 to 60 % depending on the situation and country). She also mentioned the loss of income for sex workers, not compensated for by government assistance. The poor consideration of people consuming psychoactive products, or even the absence thereof, in the context of the first confinements. She also mentioned police violence (depending on the country) against the general population; violence often accentuated for the most vulnerable people. She recalled this obvious fact, but which does not seem to apply to everyone: “There is no contradiction between human rights and public health”.

One of the points in common between the HIV and Covid-19 epidemics, in terms of discrimination, remains the cumulative vulnerabilities of the most exposed and vulnerable populations. A UNAIDS report shows that HIV / AIDS and Covid-19 have the particularity of weighing on health systems, especially in the South, poorly funded and ill-prepared to respond to these pandemics. They also have the particularity of revealing and exacerbating existing social inequalities. We learned with the HIV epidemic, punitive measures tend to keep vulnerable people away from care, however, the measures taken during the first confinement seem to have learned no lesson from that time with restrictive measures which harshly penalised populations already highly precarious and stigmatised (sex workers, drug users, etc.) . It is necessary to take this “intersectionality” into account to adapt responses to the health crisis but also to allow everyone access to information… and to their rights.

Recommendations for tomorrow!

At the end of the symposium, five major recommendations emerged from the discussions:

1 – Link the results on the stigma index to the Global Program to Combat All Forms of Discrimination, and make resources available to networks of people living with HIV as part of their advocacy efforts. (Dr Ramatoulie Jallow, GNP +);
2 – Strengthen the awareness of people living with HIV to help them assume their serological status, treat themselves and protect others by being part of the “Positive health, dignity prevention” program. (Auguste Didier Blibolo);
3 – Base health responses on human rights and put communities at the center of these responses. (Mianko Ramaroson, Onusida);
4 – Insist on general information to the population to guarantee the right to be informed and develop partnerships with state departments for new legal provisions. (Maria Amar, CNDH);
5 – Promote mediation approaches and set up contractual systems associating community workers and legal aid in cases of discrimination. (Patrice Sanon, lawyer and activist in the fight against AIDS).

 

 

Global networks and organisations call on the Global Fund to safeguard and support community systems strengthening

Open letter to the Global Fund to Fight AIDS, TB, and Malaria

10 November 2020

Dear Board Leadership, Board Members and Peter Sands,

Community-led and community-based health systems are essential for Resilient and Sustainable Systems for Health that are person-centred, equitable, evidence-based and inclusive

We are a group of global networks and organisations working to advance global health. We have come together to call on decision makers, civil society, technical experts, relevant private sector and other stakeholders from across the global health response to explore how vertical disease-oriented health programmes can integrate, evolve and transform in order to respond and meet the health needs of all people everywhere, and ultimately achieve the highest attainable standard of health through universal health coverage (UHC).

The COVID-19 pandemic (exacerbated by the collision of communicable and noncommunicable disease) has brought the importance of resilient and sustainable systems for health into sharp focus as the first line of defence against the outbreak of disease. 

However, not all COVID-19 responses have recognised the importance of scaling up the work on human rights, the removal of legal and other barriers that hinder access to health, and the importance of community-led and community-based health infrastructure and systems. 

The vital role of communities and civil society has been amply demonstrated in responses to COVID-19 all over the world. Communities have been at the forefront of the pandemic response, delivering life-saving and essential medication despite lockdowns and supply chain disruptions, ensuring food supplies, offering psycho-social support and housing and developing public-information campaigns. Community-led health systems are dynamic, have demonstrated ability to deliver integrated programs across disease areas, and can reach the most marginalised and vulnerable. 

A global survey by UHC2030 and the Civil Society Engagement Mechanism (CSEM) has found that many governments are making decisions without the meaningful engagement of community, people with lived experiences and civil society representatives. Without due consultation of this health expertise, including social and behavioural research and qualitative health data, national response plans will be incomplete and will inadequately reflect the pandemic’s disproportionate impacts on marginalised and at-risk populations. Moreover, the shrinking of civil society space, the persistence of laws that criminalise exposure and transmission of communicable disease, and the disproportionate use of criminal laws and regulations against key and vulnerable populations during COVID-19, all seriously threaten the attainment of the global health goals. 

We know from decades of experience that excluding civil society and community engagement from health approaches results in failure. To be effective, universal health coverage and epidemic preparedness strategies must be based on diverse and multi-sectoral systems for health that integrate and resource community responses as an essential component, rather than an ‘optional extra’. These strategies need to be person-centred and decentralised, addressing all the health needs of the community, especially when targeting communities underserved by current health systems. 

We warmly welcome the Global Fund’s commitment to reinforce systems for health by supporting urgent enhancements to community-led response systems, as part of the four-pronged response to the COVID-19 pandemic. In the 2017-2019 allocation cycle, the Global Fund invested more than US$100 million in community systems strengthening. We urge you to safeguard and build further on this strategic investment that has built resilience and sustainability, making a huge difference in the ability of communities to respond to COVID-19.

We therefore call on the Global Fund to:

  • Prioritise and proactively support community-led and person-centred health initiatives as a crucial component of Resilient and Sustainable Systems for Health
  • Ensure the active and meaningful engagement of civil society, communities and people with lived experiences at every stage of the design and implementation of universal health coverage and COVID-19 response
  • Invest in strong, locally community-driven UHC monitoring and accountability mechanisms at district and national level
  • Invest in robust public health data mechanisms that monitor accurately the response and can provide information about which communities need greater attention and enhanced access to services so that they are not left behind
  • Increase dialogue and initiatives supporting governments to ensure all UHC legislation is rights-based and inclusive, and where necessary reform and repeal laws that criminalise communicable disease

Sincerely,

Georgina Caswell, Head of Programmes, Global Network of People Living with HIV (GNP+)

Victoria Grandsoult, Executive Director a.i., UNITE Global Network of Parliamentarians to End Infectious Diseases

Cary James, Chief Executive Officer, World Hepatitis Alliance

Nina Renshaw, Policy and Advocacy Director, NCD Alliance 

Lucy Stackpool-Moore, Director, HIV Programmes and Advocacy, International AIDS Society (IAS)

Contact: Georgina Caswell, email – gcaswell@gnpplus.net

Australia: “Coercive responses like forced testing and detention should only ever be a last resort”, if at all

Forced testing a last resort

With the COVID-19 pandemic persisting for much longer than expected, particularly in Victoria where rolling lockdowns have affected us all, it’s understandable that there might be calls for legislative reform. But I was saddened to read a call for implementation of widespread coercive testing under the Public Health and Wellbeing Act 2008 (PHW Act) (“Flattening the curve – Why the law should allow for compulsory testing in a pandemic”, LIJ October 2020).

Threats to public health do sometimes require drastic measures, but where human rights are impacted, the legal profession should be the first to question whether such measures are proportional and justified. Existing provisions within the PHW Act allow for testing orders in strictly limited circumstances – as is appropriate given the extreme intrusion into human rights
that those orders can represent. The history of the response to HIV in Australia has frequently seen calls for curtailment of individual rights in the pursuit of the public good, and the current PHW Act was developed in part through consultation with the HIV-affected community. Notwithstanding that, there are powers to detain and test people in the Act and, while rarely used, they can be highly coercive.

The case of Lam Kuoth is an example. Accused of placing a woman at risk of HIV, Mr Kuoth, a young Sudanese man, was placed in public health detention for almost 16 months before his trial. On appeal, the Court of Appeal accepted that that period “amount[ed] to a term of imprisonment”1 in a matter where, ultimately, only a community- based order was imposed.

There is a well-developed international discourse about the most effective ways to protect the health of communities while also safeguarding rights. The Ottawa Charter for Health Promotion is globally recognised as a foundational document.2 The Charter sets out a framework of developing healthy public policy, creating supportive environments, and empowering and educating individuals, as the foundation to effective public health responses.

Victorians have been tested in huge numbers (more than 2.8 million tests). Our second wave wasn’t due to low testing, but emerged from outbreaks in workplaces – aged-care homes, abattoirs, and quarantine hotels – where low-paid workers, often with limited education and training, have been on the frontline of the pandemic. Better safeguards for their health and employment would have limited or prevented those outbreaks without the need for forced testing. Coercive responses like forced testing and detention should only ever be a last resort, if they are used at all. 

Paul Kidd, director, HIV Justice Network (Amsterdam), lawyer, Fitzroy Legal Service.

1. Kuoth v TheQueen[2010]VSCA103.
2. World Health Organisation,The Ottawa Charter for Health Promotion (21 November 1986) http://www.who.int/healthpromotion/ conferences/previous/ottawa/en/.

US: Council of State and Territorial Epidemiologists recommends the elimination of HIV-specific statutes criminalising HIV and the end to prosecutions

CSTE recommendations for modernization of laws to prevent HIV criminalization

I. Statement of the Problem:

The Ending the HIV Epidemic (EHE): A Plan for America initiative aims to reduce new HIV infections in the United States by 90% by 2030 through leveraging critical advances in HIV prevention, diagnosis, treatment and outbreak response. People with living with HIV (PLWH) and stakeholders continue to raise concerns about HIV criminalization as a potential barrier to achieving HIV prevention and care goals . These laws may prevent public health agencies from responding effectively to the HIV epidemic by perpetuating stigma, racism, xenophobia, social and economic injustice, and reducing willingness for people to participate in HIV prevention, testing, and care.

HIV criminalization is defined as laws and policies that are used to criminalize the transmission of or exposure to HIV, or to enhance sentencing because a person has HIV. These laws and policies put PLWH potentially at risk for prosecution in all states, with the majority of states having HIV-specific laws in place. However, state laws, and the application of these laws, vary widely. Most laws do not account for the actual scientificallybased level of risk engaged in or risk reduction measures undertaken by PLWH or persons exposed to HIV. In some states, public health officials are required by law to share protected health information with law enforcement officials.

HIV criminalization has not been shown to be an effective public health intervention. There is no association between HIV infection diagnosis rates and the presence of state laws criminalizing HIV exposure. Studies have suggested these laws are associated with decreased HIV testing and increased HIV prevalence. Surveys among PLWH have not demonstrated that these laws have an effect on sexual practices and therefore, these laws do not serve as a deterrent for potential HIV exposure. Given the punitive but ineffectual outcomes of these laws on PLWH, existing HIV-related laws must be eliminated.

II. Statement of the desired action(s) to be taken:

HIV criminalization laws and policies do not reflect the current science of HIV, but instead criminalize behaviors posing low or negligible risk for HIV transmission, stigmatize and discriminate against PLWH, and undermine national and local HIV prevention efforts. CSTE joins numerous other organizations across the globe in strongly opposing any criminalization of HIV exposure or transmission and recommends that all states, U.S. territories, and local jurisdictions:

1) Eliminate HIV-specific statutes that criminalize HIV, including HIV-specific penalties under general statutes.

2) Eliminate prosecution of HIV under general statutes (non-HIV specific criminalization).

3) Change relevant state and local statutes to specifically prohibit the use of HIV-related, public health data for uses outside of public health purposes, including law enforcement, family law, immigration, civil suits, or other legal purposes.

Public health agencies are the central authorities of the nation’s public health system and must actively inform public policy to ensure laws, regulations, and policies are data driven and scientifically sound. Local, state, and territorial public health officials can do this by engaging in the following activities.

1. Investigate their city, county, and/or state’s laws, regulations, and policies on HIV criminalization and data protection.

2. Assess the disproportionate impact of HIV criminalization laws (in their city, county, and state) on racial, ethnic, immigrant, LGBTQ and other priority populations (now referred to collectively as priority populations). Council of State and Territorial Epidemiologists Interim-20-ID-05 2

3. Engage with and educate public health legal counsel to assure they are up to date on surveillance technology and science of HIV transmission.

4. Review internal legal counsel and health department policies and practices with regard to public health data release for law enforcement purposes and prohibit or significantly limit data release or strengthen data protections when data must be released.

5. Provide unequivocal public health leadership, education, support and information to elected state and local officials, prosecutors, and law enforcement on the relative risks of transmission and the dangers of a punitive response to HIV exposure on our ability to respond to the epidemic.

6. Provide information at legislative or governmental hearings emphasizing data-driven and scientifically sound public health arguments against HIV criminalization.

7. Engage community stakeholders most affected by the epidemic on the impact of HIV criminalization on their lives. Invite them to partner with their relevant public health department to eliminate these laws.

8. Ensure states and local jurisdictions assess the impact of HIV criminalization and address action steps for HIV decriminalization in their EHE initiative implementation plans and the disproportionate impact on priority populations.

9. Identify and share best practices with elected state and local officials, law enforcement and community stakeholders related to successes in changing laws and policies to prevent HIV criminalization.

10. Provide information to the media on advances in HIV treatment and prevention and the detrimental impact of HIV criminalization and prosecution on public health efforts.

III. Public Health Impact:

Preventing HIV criminalization will diminish the burden that has been placed on priority populations and strengthen public health interventions. HIV decriminalization has the potential to engage more individuals in HIV testing and care, leading to earlier antiretroviral treatment (ART) initiation, increased viral suppression, and decreased transmission. Furthermore, prevention activities can be strengthened as more individuals become aware of their HIV status and potential risks for acquiring HIV.

1. Increase HIV testing. Studies suggest that HIV criminalization laws deter participation in HIV testing. Deterrence to HIV testing propagates HIV transmission and results in missed opportunities for HIV care and early ART initiation specifically in priority populations. Thirty-eight percent of new HIV transmissions are attributed to PLWH who are unaware of their status; therefore, HIV testing is essential to increasing awareness among PLWH.

2. Decrease stigma and discrimination related to HIV. Given the heightened community concerns regarding law enforcement actions in minority communities, it is critical that public health activities are decoupled from law enforcement. HIV criminalization perpetuates stigma and discrimination, which are significant barriers to EHE, thereby fueling the epidemic. Eliminating HIV criminalization laws will reduce stigma and may help meet EHE targets.

3. Remove a disincentive to participation in public health efforts (i.e., EHE Pillars: Prevent, Diagnose, Treat, and Respond) Trust is the cornerstone of public health, yet communities of color have a long history of systemic and institutional racism that has eroded trust in public health. Public health officials and community members have raised concerns that routinely-collected public health data can be misused for HIV criminalization and contribute to community opposition to partner services and cluster response. Removing HIV criminalization laws and securing HIV data protections will help to rebuild trust in public health and engage communities of color in critical public health services.

The full statement is available here: https://cdn.ymaws.com/www.cste.org/resource/resmgr/ps/positionstatement2020/Interim-20-ID-05_HIV_Final.pdf