France: HIV criminalisation laws have a disproportionate impact on women

HIV: The share of women!

For the 8th of March, International Women’s Rights Day, Seronet takes stock of some figures on HIV related to women worldwide.

HIV in the world: women’s numbers

In 2015, globally, about 17.8 million women (aged 15 and over) were living with HIV, equivalent to 51% of the total population living with HIV. About 900,000 of the 1.9 million new HIV infections worldwide in 2015 – 47 percent – were women. It is young women and girls aged 15 to 24 who are particularly affected. Globally, about 2.3 million adolescent girls and young women were living with HIV in 2015, representing 60% of the entire population of young people (aged 15 to 24) living with HIV. 58% of new HIV infections among 15-24 year olds in 2015 were among adolescent girls and young women.

According to the same source, regional differences in new cases of HIV infection among young women and the proportion of women (aged 15 and over) living with HIV compared to men are considerable. They are even more important between young women (aged 15 to 24) and infected young men. In sub-Saharan Africa, 56% of new HIV infections occurred in women, and the rate was even higher among young women aged 15 to 24, accounting for 66% of new infections.

In the Caribbean, women accounted for 35% of newly infected adults, and 46% of new infections occurred among young women aged 15 to 24 years. In Eastern Europe and Central Asia, 31% of new cases of HIV infection have affected women; however, the rate of new infections among young women aged 15 to 24 reached 46%. In the Middle East and North Africa, women represent 38% of newly infected adults, while 48% of young women aged 15 to 24 are newly infected. In Western Europe, Central Europe and North America, 22% of new infections occurred in women, the highest rate among young women aged 15 to 24, with 29% of new infections (1).

Inequalities between women themselves

Some women are more exposed to HIV than others. This is a function of belonging to certain groups. The incidence of HIV in specific groups of women is disproportionate. According to an analysis of studies measuring the cumulative prevalence of HIV in 50 countries, it is estimated that sex workers around the world are about 14 times more likely to be infected with HIV than other women of childbearing age. (2). In addition, data from 30 countries indicate that the cumulative prevalence of HIV among women who inject drugs was 13%, compared to 9% among men who inject drugs (3).

A feminization of the HIV epidemic in France

Over the years, the HIV / AIDS epidemic has been strongly feminized in France too: the share of new diagnoses has increased in France from 13% in 1987 to 33% in 2009. Heterosexual contamination is the main vector of HIV transmission (54% of HIV-positive discoveries) and women make up the majority of these infections. Compared to men, they are infected younger.

In France, women account for about 30% of new HIV infections each year, a significant proportion of whom are born abroad and especially in sub-Saharan Africa. If we look at the 2016 data, we note that among heterosexuals, the majority of diagnostics relates to 2,300 people born abroad. 80% are born in sub-Saharan Africa and 63% are women. Late-stage discoveries are more specific to men than women.

Migrant women, in greater numbers than men in France, suffer more problems related to sexual health: complications specific to pregnancy and childbirth and sexual violence. These states are dependent on the conditions of the country of origin (sexual mutilation, forced marriages), and migration (rape, trafficking in human beings). They can be strengthened upon arrival in the host country, as the period of installation often corresponds to a period of health and social precariousness, which increases the risks of exposure to HIV and sexually transmitted infections.

What factors exacerbate the prevalence of HIV?

It’s obvious … but it’s worth remembering. Violence against women and girls increases their risk of HIV infection (4). A study in South Africa found that the link between intimate partner violence and HIV was more pronounced in the presence of domineering behaviour and high HIV prevalence.

In some settings, up to 45% of adolescent girls report that their first sexual experience was forced. Worldwide, more than 700 million women alive today were married before their eighteenth birthday. Often, they have limited access to prevention information and limited means to protect themselves from HIV infection. Worldwide, out of ten adolescent girls and young women aged 15 to 24, only three of them have complete and accurate knowledge of HIV (5). Lack of information on HIV prevention and the inability to use such information in the context of sexual relations, including in the context of marriage, undermine women’s ability to negotiate condom use and engage in safer sex, says UN Women.

Seropositivity: a double sentence for women

Other data indicate that women living with HIV are at increased risk of violence (6), including violations of their sexual and reproductive rights (reproductive health). Cases of involuntary or forced sterilization and forced abortions among women living with HIV have been reported in at least fourteen countries. In addition, legal standards directly affect the level of risk for women to contract HIV, says the UN Women. In many countries where women are most at risk, the laws that are supposed to protect them are ineffective. The lack of legal rights reinforces women’s subordinate status, particularly with regard to women’s rights to divorce, to possess and inherit property, to enter into contracts, to prosecute and to testify in court, to consent to medical treatment and open a bank account. Discriminatory laws on the criminalization of HIV transmission can also have a disproportionate impact on women, as they are more vulnerable to being tested for HIV and to find out whether or not they are infected with HIV when they access healthcare for their pregnancy. HIV-positive mothers are considered criminals under HIV-related laws in several countries in West and Central Africa, which explicitly or implicitly prohibits them from being pregnant or breastfeeding. for fear that they might transmit the virus to the fetus or to the child (7).

The response to HIV for women

Globally, between 76% and 77% of pregnant women have had access to antiretroviral drugs to prevent mother-to-child transmission of HIV, says UN Women (data for 2015). Despite this encouraging rate, more than half of the 21 priority countries of the UNAIDS Global Plan were unable to meet the need for family planning services for at least 25% of all married women. Another element is that governments are increasingly recognizing the importance of gender equality in HIV interventions at the national level. However, only 57% (out of the 104 countries that submitted data) had a specific budget. For their part, Global Fund expenditures on women and girls have increased from 42 percent of its total portfolio in 2013 to about 60 percent in 2015.

(1): UNAIDS, 2015 estimates from the AIDSinfo online database. Additional disaggregated data correspond to unpublished estimates provided by UNAIDS for 2015, derived from country-specific AIDS epidemic models.

(2) : Stefan Baral and al. (15 mars 2012), “Burden of HIV among female sex workers in low-income and middle-income countries: a systematic review and meta-analysis”, The Lancet Infectious Diseases, vol. 12, no 7. p. 542.

(3) : UNAIDS (2014) The Gap Report, p. 175.

(4) : R. Jewkes and al. (2006) « Factors Associated with HIV Sero-Status in Young Rural South African Women: Connections between Intimate Partner Violence and HIV », International Journal of Epidemiology, 35, p. 1461-1468 ;

(5) : UNAIDS (2015) 2015 Report on World AIDS Day “On the Fast-Track to end AIDS by 2030: Focus on Location and Population“, p. 75.

(6) : WHO and UNAIDS (2010) “Addressing violence against women and HIV/AIDS: What works?“, p. 33.

(7) : Commission mondiale sur le VIH et le droit (2012) « Risques, droit et santé », p. 23.

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VIH : La part des femmes!

A l’occasion du 8 mars, Journée international des droits des femmes, Seronet fait le point sur quelques chiffres relatifs au VIH concernant les femmes dans le monde.

VIH dans le monde : la part des femmes

En 2015, à l’échelle mondiale, environ 17,8 millions de femmes (âgées de 15 ans et plus) vivaient avec le VIH, soit 51 % de toute la population vivant avec le VIH. Environ 900 000 des 1,9 million des nouveaux cas d’infection par le VIH constatés dans le monde en 2015 – soit 47 % – ont concerné des femmes. Ce sont les jeunes femmes et les adolescentes de 15 à 24 ans qui sont particulièrement touchées. A niveau mondial, environ 2,3 millions d’adolescentes et de jeunes femmes vivaient avec le VIH en 2015, représentant 60 % de toute la population de jeunes (de 15 à 24 ans) vivant avec le VIH. 58 % des nouveaux cas d’infection par le VIH chez les jeunes de 15 à 24 ans en 2015 touchaient des adolescentes et des jeunes femmes.

Selon la même source, les différences régionales concernant les nouveaux cas d’infection par le VIH chez les jeunes femmes et la proportion de femmes (âgées de 15 ans et plus) vivant avec le VIH par rapport aux hommes sont considérables. Elles sont encore plus importantes entre les jeunes femmes (âgées de 15 à 24 ans) et les jeunes hommes infectés. En Afrique subsaharienne, 56 % des nouveaux cas d’infection par le VIH ont touché des femmes, et ce taux a été encore plus élevé chez les jeunes femmes de 15 à 24 ans, représentant 66 % des nouveaux cas d’infection.

Dans les Caraïbes, les femmes ont représenté 35 % des adultes nouvellement infectés, et 46 % des nouveaux cas d’infections ont touché les jeunes femmes de 15 à 24 ans. En Europe de l’Est et en Asie centrale, 31 % des nouveaux cas d’infection par le VIH ont touché des femmes ; toutefois, le taux des nouveaux cas d’infection touchant les jeunes femmes de 15 à 24 ans a atteint 46 %. Au Moyen-Orient et en Afrique du Nord, les femmes représentent 38 % des adultes nouvellement infectés, alors que 48 % des jeunes femmes de 15 à 24 ans sont nouvellement infectées. En Europe occidentale, en Europe centrale et en Amérique du Nord, 22 % des nouveaux cas d’infection ont touché des femmes, ce taux étant plus élevé chez les jeunes femmes de 15 à 24 ans, avec 29 % de nouveaux cas d’infection (1).

Des inégalités entre les femmes elles-mêmes

Certaines femmes sont plus exposées au VIH que d’autres. C’est notamment fonction de l’appartenance à certaines groupes. L’incidence du VIH sur certains groupes spécifiques de femmes est disproportionnée. Selon une analyse d’études mesurant la prévalence cumulée du VIH dans 50 pays, on estime que, dans le monde, les travailleuses du sexe ont environ 14 fois plus de risques d’être infectées par le VIH que les autres femmes en âge de procréer (2). Par ailleurs, d’après des données émanant de 30 pays, la prévalence cumulée du VIH chez les femmes qui consomment des drogues injectables était de 13 %, contre 9 % chez les hommes qui consomment des drogues injectables (3).

Une féminisation de l’épidémie de VIH en France

Au fil des années, l’épidémie à VIH/sida s’est fortement féminisée en France aussi : la part de nouveaux diagnostics est passée, en France, de 13 % en 1987 à 33 % en 2009. La contamination hétérosexuelle est le principal vecteur de transmission du VIH (54 % des découvertes de séropositivité) et les femmes constituent la majorité de ces contaminations. Par rapport aux hommes, elles sont contaminées plus jeunes.

En France, les femmes représentent environ 30 % des nouvelles contaminations par le VIH chaque année, une part importante d’entre elles sont nées à l’étranger et en particulier en Afrique subsaharienne. Si on regarde les données de 2016, on note que les hétérosexuels, la majorité des découvertes de séropositivité est constituée par les 2 300 personnes nées à l’étranger. Il s’agit à 80 % de personnes nées en Afrique subsaharienne et à 63 % de femmes. Les découvertes à un stade avancé concernent plus particulièrement les hommes que les femmes.

Les femmes migrantes, en plus grand nombre que les hommes en France, subissent plus de problèmes liés à la santé sexuelle : complications propres à la grossesse et à l’accouchement, violences sexuelles. Ces états sont dépendants des conditions du pays d’origine (mutilations sexuelles, mariages forcés), et du parcours migratoire (viols, trafic d’êtres humains). Ils peuvent être renforcés à l’arrivée dans le pays d’accueil, la période d’installation correspondant souvent à une période de précarité sanitaire et sociale, qui accroît les risques d’exposition aux VIH et aux infections sexuellement transmissibles.

Quels facteurs exacerbent la prévalence du VIH ?

C’est une évidence… mais qu’il est bon de rappeler. La violence à l’égard des femmes et des filles augmente leurs risques d’infection par le VIH (4). Une étude menée en Afrique du Sud a démontré que le lien entre la violence infligée par un partenaire intime et le VIH était plus marqué en présence d’un comportement dominateur et d’une prévalence élevée du VIH.

Dans certains contextes, jusqu’à 45 % des adolescentes indiquent que leur première expérience sexuelle a été forcée. Dans le monde, plus de 700 millions de femmes en vie aujourd’hui ont été mariées avant leur dix-huitième anniversaire. Souvent, elles disposent d’un accès restreint aux informations de prévention, et de moyens limités pour se protéger contre une infection par le VIH. A l’échelle mondiale, sur dix adolescentes et jeunes femmes de 15 à 24 ans, seulement trois d’entre elles ont des connaissances complètes et exactes sur le VIH (5). Le manque d’informations sur la prévention du VIH et l’impossibilité d’utiliser de telles informations dans le cadre de relations sexuelles, y compris dans le contexte du mariage, compromettent la capacité des femmes à négocier le port d’un préservatif et à s’engager dans des pratiques sexuelles plus sûres, rappelle l’ONU Femmes.

La séropositivité : une double peine pour les femmes

D’autres données indiquent que les femmes vivant avec le VIH sont davantage exposées à des actes de violence (6), y compris des violations de leurs droits sexuels et génésiques (la santé reproductive). Des cas de stérilisation involontaire ou forcée et d’avortements forcés chez les femmes vivant avec le VIH ont été signalés dans au moins quatorze pays. De plus, les normes juridiques affectent directement le niveau de risque pour les femmes de contracter le VIH, rappelle l’Onu Femmes. Dans bon nombre de pays où les femmes y sont le plus exposées, les lois qui sont censées les protéger sont inefficaces. Le manque de droits juridiques renforce le statut de subordination des femmes, en particulier au regard des droits des femmes de divorcer, de posséder et d’hériter de biens, de conclure des contrats, de lancer des poursuites et de témoigner devant un tribunal, de consentir à un traitement médical et d’ouvrir un compte bancaire. Par ailleurs, les lois discriminatoires sur la criminalisation de la transmission du VIH peuvent avoir des répercussions disproportionnées sur les femmes, car elles sont plus exposées à être soumises à des tests de dépistage et ainsi à savoir si elles sont ou non infectées lors de soins au cours de la grossesse. Les mères séropositives sont considérées comme des criminelles en vertu de toutes les lois relatives au VIH en vigueur dans plusieurs pays en Afrique de l’Ouest et en Afrique centrale, ce qui leur interdit, explicitement ou implicitement, d’être enceintes ou d’allaiter, de crainte qu’elles transmettent le virus au fœtus ou à l’enfant (7).

La réponse face au VIH pour les femmes

A l’échelle mondiale, entre 76 et 77 % des femmes enceintes ont eu accès à des médicaments antirétroviraux pour prévenir la transmission du VIH de la mère à l’enfant, indique l’Onu Femmes (données pour 2015). Malgré ce taux encourageant, plus de la moitié des 21 pays prioritaires du Plan mondial d’Onusida ne parvenaient pas à répondre aux besoins en services de planning familial d’au moins 25 % de l’ensemble des femmes mariées. Autre élément : les gouvernements reconnaissent de plus en plus l’importance de l’égalité des sexes dans les interventions face au VIH qui sont menées à l’échelle nationale. Cependant, seulement 57 % (sur les 104 pays qui ont soumis des données) d’entre eux disposaient d’un budget spécifique. De leur côté, les dépenses du Fonds mondial de lutte contre le sida consacrées aux femmes et aux filles ont augmenté, passant de 42 % de son portefeuille total en 2013 à environ 60 % en 2015.

(1) : Onusida, estimations de 2015 provenant de la base de données en ligne AIDSinfo. Les données désagrégées supplémentaires correspondent aux estimations non publiées fournies par l’Onusida pour 2015, obtenues à partir de modèles des épidémies de sida spécifiques aux pays.

(2) : Stefan Baral et al. (15 mars 2012), “Burden of HIV among female sex workers in low-income and middle-income countries: a systematic review and meta-analysis”, The Lancet Infectious Diseases, vol. 12, no 7. p. 542.

(3) : Onusida (2014) The Gap Report, p. 175.

(4) : R. Jewkes et al. (2006) « Factors Associated with HIV Sero-Status in Young Rural South African Women: Connections between Intimate Partner Violence and HIV », International Journal of Epidemiology, 35, p. 1461-1468 ;

(5) : Onusida (2015) Rapport 2015 sur la Journée mondiale de lutte contre le sida “On the Fast-Track to end AIDS by 2030: Focus on Location and Population“, p. 75.

(6) : L’OMS et ONUSIDA (2010) “Addressing violence against women and HIV/AIDS: What works?“, p. 33.

(7) : Commission mondiale sur le VIH et le droit (2012) « Risques, droit et santé », p. 23.

Published in Seronet on March 7, 2018

Canada: Experts believe that the Novia Scotia Court of Appeal recent decision in a non-disclosure case will guide future cases

N.S. appeal will give guidance for future HIV non-disclosure cases, lawyers say

Tuesday, February 27, 2018 @ 9:25 AM | By Terry Davidson

The acquittal of an HIV-positive man in an East Coast non-disclosure case will further guide Canada’s legal community in its response to new science around risk of transmission, experts say.

The Nova Scotia Court of Appeal decision in R. v. Thompson 2018 NSCA 13, rendered Feb. 15, involves Claude Thompson, an Antigonish man who was charged with failing in 2011 to tell two women he was HIV-positive before having consensual sex with them.

During Thompson’s 2016 trial, Justice Suzanne Hood found that Thompson had been taking antiviral drug therapy and used a condom with the first complainant but not the second. She also leaned on expert testimony that there was negligible risk of transmission in this case.

As a result, Justice Hood acquitted Thompson of two counts of aggravated sexual assault, but deemed him guilty of the “lesser and included offences of sexual assault causing bodily harm” after finding the two women suffered psychologically from the initial uncertainty of not knowing if they had been infected. (Both subsequently tested negative.)

This, she ruled, vitiated their consent.

But Appeal Court Justice Duncan Beveridge threw out Thompson’s bodily harm convictions, ruling that unless there was a realistic possibility of transmission, consent could not be vitiated simply by psychological harm.

“The sole issue in this case is whether psychological harm said to have been caused by non-disclosure of HIV status vitiates consent to sexual activity.” The short answer is no, it does not,” stated Justice Beveridge, with Justices Linda Lee Oland and Joel Fichaud in agreement. “Failure by a sexual partner to disclose that he or she has a sexually transmitted disease is morally reprehensible, but it is not usually a crime.”

Justice Beveridge went on to talk of stress and upset being “irrelevant” in the “eyes of the law.”

“Emotional stress or upset, even if they could legitimately amount to bodily harm within the meaning of the Criminal Code, are, in the eyes of the law, irrelevant.”

In December, the federal government released the Criminal Justice System’s Response to Non-Disclosure of HIV, a research paper warning of the over-criminalization of infected people who don’t disclose their condition but pose a “negligible” risk to non-infected partners. It also lays out various sexual scenarios which would involve a low — or even nonexistent — possibility of transmission, even if a condom is not used.

Criminal law, it stated, should not apply to those who do not disclose but have maintained a suppressed viral load, are taking antiretroviral treatment, use condoms or engage only in oral sex.

Following the paper’s release, Ontario’s Ministry of the Attorney General announced that the province’s Crowns would be told to limit non-disclosure prosecutions, particularly for those on antiretroviral therapy and with “a suppressed viral load.”

Defence lawyers urged Crowns to re-examine both current non-disclosure cases and past convictions in light of evolving medical science.

The release of the paper was the next chapter in the changing legal landscape when it comes to non-disclosure cases.

Before it came Mabior.

In 2012, the Supreme Court of Canada ruled in R. v. Mabior 2012 SCC 47 that an infected person was not legally required to disclose their HIV-positive status if they carried a low viral load and used a condom. However, the SCC left room for some tweaking should laws need to adapt to changing science.

Toronto lawyer Cynthia Fromstein said the adherence to medical science in the Thompson case will serve to further guide Canada’s legal community in non-disclosure cases.

“It’s important because it’s a court of appeal decision that is making it very clear in terms of the reliance on medical science [being] the directive as to whether someone poses a realistic risk of transmission,” said Fromstein. “That’s important because we can now use that. As a defence counsel, I can use that on cases where they are still prosecuting. If there is a prosecution for oral sex, or a prosecution where there is a condom used, now there is some law that is supportive of the notion of what it takes … to find someone guilty, and perhaps it will also influence (provincial attorney generals) in not prosecuting, the fact that there is a legal directive, a court of appeal decision.”

Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, said Justice Hood’s psychological harm conviction of Thompson was of some concern.

“For years we have seen many different attempts by some actors in the justice system to expand the criminal law against people living with HIV,” said Kazatchkine in an e-mail. “Such attempts have included pushing the psychological harm argument. While the trial judge’s verdict in Thompson … was concerning (and unjust), we knew there was no legal basis for such argument. … The interpretation of the legal text of a ‘realistic possibility of transmission’ has created uncertainty, but the law around HIV non-disclosure has always been clear: there can be no conviction for non-disclosure in absence of actual transmission or a significant risk of transmission.”

Published in The Lawyer’s Daily on February 27, 2018

 

US: Outdated HIV criminalisation bills are currently being considered in seven US States

A Look At HIV Criminalization Bills Across The Country

By Hope Jackson

As state legislative sessions get underway across the country, HRC and equality partners are tracking seven HIV criminalization measures that threaten the lives of those living with HIV & AIDS, LGBTQ Americans and their families. Despite advances in medicine that can prevent the transmission of HIV or treat those exposed to the virus, unconscionable HIV criminalization bills are currently being considered in Georgia, Kentucky, Arizona, New York, West Virginia and Oklahoma. According to HRC’s 2017 State Equality Index, 25 states currently have laws that criminalize behaviors that carry a low or negligible risk of HIV transmission.

HIV criminalization legislation does not work in the context of modern scientific developments. There is no evidence to suggest HIV criminalization helps to lower HIV transmission rates.

Georgia’s HB 737 would force individuals to submit to court ordered blood tests where a law enforcement officer alleges to have been exposed to blood or other bodily fluids that could result in HIV, Hepatitis B or Hepatitis C. The bill passed committee on February 5th. Kentucky’s HB 193 reached the House for consideration on February 16 and could be voted on any day now. As introduced, the Kentucky bill would criminalize the common cold as the definition of “communicable disease” would include diseases that are unlikely to cause lasting harm, much less harm warranting felony punishment. In the face of affirmative votes to push the bill to the House floor, a number of legislators took issue with the dangerously broad language that would punish the mere passing of the flu or common cold. This hearing revealed that HIV education is still needed in both the legislature and in the community.

The very nature of the HIV & AIDS epidemic means that the enforcement of these laws will target specific, vulnerable populations. These laws target transgender Americans as 1.4 percent of transgender individuals report living with HIV, compared with 0.3 percent of the general population who report living with HIV.  Furthermore, a 2015 Williams Institute report found that prior to California’s HIV modernization bill, every incident where there was an HIV-specific charge led to a conviction and 90 percent of those convictions led to immediate confinement. The report showed that white men were “significantly more likely to be released and not charged (16 percent)” and “black men (38 percent), black women (44 percent), and white women (39 percent) were significantly less likely to be released and not charged.”

Understanding the science behind HIV underscores just how ineffective these bills are in 2018. HIV can only be transmitted by blood, pre-seminal fluid, semen, vaginal fluid, breast milk or rectal fluids. Saliva, feces, urine and other secretions alone do not transmit HIV. Moreover, those who adhere to HIV treatment can expect to live long and healthy lives. Over the last 35 years, the medical community has made significant advancement in the treatment and prevention of HIV & AIDS. An individual may take Truvada, also called pre-exposure prophylaxis or PrEP, once a day to prevent contracting HIV before exposure. Lastly, for some people who know they are living with HIV, there is the possibility that the transfer of the virus to another person would be nearly zero because the undetectable viral load of HIV makes the virus untransmittable. HIV criminalization ignores these developments and perpetuates stigma.

HRC and HRC Foundation are committed to working to end the criminalization of HIV & AIDS.

 Published on Human Rights Campaign Blog on February 26, 2018

US: Hepatitis C criminalisation on the rise, a worrying echo of HIV criminalisation laws

Hepatitis C Exposure Is a Crime in Some States; Is This the New HIV Criminalization?

On Jan. 19, Matthew Wenzler, a 27-year-old Ohio man, was arrested in the early morning hours for public intoxication and disorderly conduct. During his arrest, Wenzler allegedly spit at police officers repeatedly until he was eventually spitting blood.

After officers learned that Wenzler has hepatitis C (HCV), he was charged with felonious assault, Ohio’s most serious assault offense. His bail was set at $75,000. Although news of his arrest quickly faded from the local news, it may mark a watershed moment in a growing trend of HCV criminalization across the country.

“There are certainly statutes around the country that criminalize hepatitis,” said Trevor Hoppe, assistant professor of sociology at University at Albany, State University of New York. “They are not as numerous as HIV-specific criminalization laws, and they’re not enforced as widely, but they do exist.” Moreover, HCV criminalization may be on the rise, repeating the wave of HIV criminalization laws that sprang up in the wake of the AIDS crisis.

During the 1990s, Ohio and many other states passed laws that specifically criminalize certain behaviors by people living with HIV and essentially classify their bodily fluid as a deadly weapon. Today, however, Ohio’s criminal law also references people with HCV and other infectious diseases, the effect of which “is to allow prosecutors to punish people living with hepatitis in a broad range of contexts,” said Hoppe.

Wenzler was charged under a statute that criminalizes any “attempt to cause [another] person to come into contact with blood, semen, urine, feces, or another bodily substance” when they are HCV-positive and aware of their status. Confusingly, this statute is called “harassment by inmate,” but in this case, it is being applied more broadly, said Hoppe.

Only a few cases of HCV infection among health care workers from a blood splash to the eye have been reported, and overall, the risk of transmitting HCV through direct blood contact to the eyes, nose, or mouth is “is believed to be very low,” according to the Centers for Disease Control and Prevention.

“Hepatitis C is transmitted predominantly through blood-to-blood routes,” said Donald M. Jensen, M.D., professor of medicine, Rush Medical College. “It probably takes a relatively large inoculum of virus to transmit. … Even with accidental needlesticks among health care workers, the likelihood they will develop hepatitis C is 1.8 to 2%.”

On the other hand, “The risk of transmission of hepatitis C by [spitting] is almost non-existent,” he said. “For me, that doesn’t make a lot of sense to make that a felony.”

Several broader trends may be fueling HCV criminalization. Over the past five years, the opioid epidemic has contributed to a three-fold increase in the number of new infections, with several high-profile outbreaks across the country catching media attention.

At the same time, while activists’ efforts to rollback felony charges specifically related to HIV have succeeded in states such as California and Colorado, other states have taken a different approach to HIV criminalization reform.

“Other states are trying to get rid of the HIV-specific nature of laws by [including] a larger laundry list of communicable disease and [sexually transmitted infections],” said Allison J. Nichol, legal and policy counsel, The Sero Project. States that have adopted the second approach include Tennessee and Iowa, according to Hoppe, which only recently expanded their criminal laws to include hepatitis C.

For Hoppe, the circumstances of Wenzler’s arrest are a worrying echo of the early days of HIV criminalization. At that time, “people living with HIV were being prosecuted after spitting at or biting police officers,” Hoppe said. “Across the country, there were assault of a deadly weapon charges, [and] they were almost universally cases involving police officers.”

Over time, “the application of the law can change,” Hoppe said. Today, he said, HIV criminalization laws are still on the books, but they’re being used differently. Instead of being focused on police officers, many current HIV criminalization cases revolve around a lack of disclosure among sexual partners.

While HIV and HCV are comorbid infections, “they’re two totally different diseases,” said Jensen.

Most notably, starting in 2013, a new generation of medications was approved that can cure HCV in most people. In addition, when people are exposed to HCV and contract the virus, some will be able to clear the virus on their own without the need of curative therapy, said Jensen. But the cost of the drugs to cure the disease has caused private and public insurers to enact policies that restrict treatment to once per lifetime, people not using alcohol or other drugs, and people with late-stage liver disease. Many activists have been fighting to change these rules around the country with the goal of expanding access to the curative drugs to anyone with an HCV diagnosis.

“The outcome of hepatitis C is clearly much better today than it was five or six years ago,” Jensen said.

According to Hoppe, some of the new criminal charges that specifically target acts by people with hepatitis C, such as spitting and biting, were put in place after the new era of “cures” had already been approved.

“I find it especially curious that a disease that is now curable is being actively criminalized,” he said. “It’s not clear how this is going to progress,” Hoppe added, but “this could be the beginning of a new area of criminalization specific to hepatitis.”

Sony Salzman is a freelance journalist reporting on health care and medicine, who has won awards in both narrative writing and radio journalism. Follow Salzman on Twitter: @sonysalz.

Published in The Body on February 26, 2018

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Note from CHLP on Feb 27, 2018

Under Ohio’s law, felonious assault (ORC §  2903.11) and harassment with a bodily substance (ORC § 2921.38) are different offences located in different statutes. They also have different penalties. Felonious assault is a second-degree felony, punishable by up to 8 years in prison. Harassment with a bodily substance for a person living with HIV, hepatitis, or tuberculosis is a third-degree felony punishable by up to three years in prison. This person was charged with four counts of harassment with a bodily substance, and so is facing up to 12 years of incarceration.
The felonious assault statute does include sex without disclosure, though. These and the laws of every other state can be found in CHLP’s Sourcebook

Ukraine: HIV stigma, threats of violence and a culture of blame make women fearful of disclosing their status or seeking care

Women with HIV abused by partners, rejected by society

Shunned by relatives, doctors and the community, Ukrainian women struggle to survive and protect their children.

by

Kiev, Ukraine – In October 2012, 31-year-old Hanna Lilina, a Donetsk-native, was told she had HIV during a pre-natal check-up.

When she found out, she felt confused.

“I started to clean my apartment obsessively as if people could contract HIV just by touching a surface. I didn’t understand it, I was so afraid and paranoid,” she says.

Lilina became infected with HIV after having unprotected sex with her boyfriend, whom she suspects contracted the virus by sharing a needle with friends who injected opium.

He had been an abusive partner, and so by the time she discovered she had the virus, they had already parted ways.

“At first, it was just emotional abuse. Then he started to beat me, especially after he had been drinking. It was always worse then,” she says.

Lilina left her partner to rebuild her life in Kiev.

“Telling my family was difficult. My parents were shocked and upset at first but now they’re very supportive. However, my sister immediately assumed that I was a drug addict. She hates me and wants nothing to do with me.”

In Kiev, she started a new relationship.

But when her new boyfriend found out about the virus, “he started acting differently around me”, she says.

“When I was seven months pregnant, he tried to get me to have an abortion. By the time the baby was born, he had left me.”

Ukraine has one of the fastest growing HIV epidemics in Eastern Europe and Central Asia, with approximately 240,000 people living with the virus and a prevalence of 0.9 percent in the general adult population.

In Ukraine, 35 percent of women living with HIV have experienced violence from a partner or husband since the age of 15, compared to 19 percent of women who do not have HIV, according to a November 2016 survey by Positive Women, a Ukrainian NGO.

Approximately half of the 1,000 HIV-positive women surveyed across the country had no support after they suffered violence.

“There is an epidemic of gender-based violence in many regions of the world, disproportionately affecting women and girls, making them more vulnerable to becoming infected with HIV,” Vinay P. Saldanha, UNAIDS regional director for Eastern Europe and Central Asia, tells Al Jazeera.

‘A culture of blame’

According to UN Women, women living with HIV are more likely to experience violence, including violations of their sexual and reproductive rights.

“Involuntary and coerced sterilisation and forced abortion among women living with HIV has been reported in at least 14 countries worldwide,” UN Women reports.

“The relationship between violence and HIV is complicated, but a significant factor is the culture of blame that surrounds HIV.

“In Eastern Europe and Central Asia, as in many other regions, the blame for HIV tends to fall on women,” says Saldanha.

Women are also often the first in a couple to learn of HIV in the family as the coverage of HIV testing and treatment in Ukraine is higher among women.

Most women are tested for HIV at least once at gynaecology and obstetrics clinics.

“It can tragically unfold that her husband or sexual partner points the finger of blame at her, even if her male partner was the one to infect her with HIV.

“In such a situation, she is at potential risk of domestic and sexual violence.”

The consequences can be life-threatening.

“As a result, a woman’s de-facto response can be to refrain from telling her family or partner that she has HIV, and she might even be too afraid to seek out the life-saving health services available,” says Saldanha.

And even if a woman does want treatment, it is not always guaranteed.

In some cases, women are unable to access medical support because their partners refuse to pay for travel to the hospital.

“‘You can get treatment, just not with my money,’ is what they say. But when a woman is financially dependent, what can she do?,” says Sofia, an HIV-positive officer working for the All-Ukrainian Network of People Living with HIV/AIDS, the country’s largest patient organisation.

The situation became so precarious that in May 2017, the Positive Women NGO filed a joint report to the United Nations on the violations of women’s rights, along with other civil society organisations representing drug-users, sex workers and members of the LGBT community.

“In small towns and the provinces, the situation is particularly difficult. It can be impossible for an HIV-positive woman to find a gynaecologist who will voluntarily examine or simply look at her,” says a member of Positive Women, who wished to remain anonymous.

“It’s only on the orders of high authorities that doctors will agree to an examination. And these are cases involving ‘safe’ women.”

If a woman is considered “unsafe” – an alcoholic, drug-user or sex worker – she cannot even enter a doctor’s office.

A community’s attitude to HIV can be so unsupportive that patients are often harassed or forced out.

“Doctor’s attitudes are not much better,” says the Positive Women member.

Sterilisation threats and protecting children

The group’s report to the UN detailed the case of Vera, a sex worker from the Kirovograd region who underwent a caesarean section to deliver her baby.

After the procedure, the 24-year-old was told that she had been sterilised because, in the words of her doctor, she had “no right to build a family and have children”.

“Over a year and a half later, Vera is still coming to terms with what happened to her,” said the Positive Women member.

Mothers are also challenged with having to protect their children from discrimination.

Olga Rudneva, head of the Elena Pinchuk ANTIAIDS Foundation (ANTIAIDS) in Kiev, tells Al Jazeera that mothers often hide their children’s HIV status.

“If, for example, a school director finds out that a student has HIV, the child could be kicked out.

“This leaves some women in extremely poor financial situations, unable to work because they must look after their child. Women prefer to just to pay for a clean medical record to avoid such problems – you can do that in Ukraine,” she says.

Lilina, the HIV patient and domestic abuse survivor, says her daughter’s paediatrician tried to inform her school of the child’s HIV status.

With the help of ANTIAIDS, she managed to block the doctor’s attempt.

“[He] was certainly not happy when he finally agreed to keep my status confidential,” says Lilina.

Government officials failed to respond to Al Jazeera’s repeated requests for comment.

But the Ukrainian government is taking this situation “very seriously”, says UNAIDS’ Saldanha.

In 2017, the National Coordination Council on preventing HIV/AIDS in Ukraine (NCC) accepted two representatives from Positive Women to help create an HIV/AIDS strategy over the next five years.

ANTIAIDS’ Rudneva says there is more to be done, however.

“If you have HIV, you deserve HIV. That’s the mentality in this country,” she says.

The foundation gave Lilina the support to start rebuilding her life in Kiev, helping her helping her find accommodation and providing her baby with a supply of nappies.

It also encouraged her to join Kyyanka, a support group.

At first, Lilina was sceptical and it took her a while to go to a meeting.

“But now the women are like my family,” she says. “It wasn’t until I joined Kyyanka that I understood how I’d been struggling with self-stigma and repressing negative feelings about myself.

“The self-stigma is still there, but at least I’m aware of it now. It’s only when you’re aware of the stigma, that you can start to fight against it.”

Published in Al Jazeera News on February 25, 2018

Switzerland: 'Behind the scenes' story on how advocates and science changed HIV criminalisation laws in Switzerland

Held Harmless

Science Guided Switzerland Away From Prosecuting People Living With HIV for Theoretically Exposing Their Partners To The Virus. Could It Happen Here, Too?

In November 2008, a 34-year-old African man was sitting in a jail cell in Geneva, Switzerland. We don’t know his name — only that court documents called him Mr. S. We don’t know which country he immigrated from. He could have been anyone. All we know is that, to the state, he was a criminal.

He was serving 18 months for having condomless sex without disclosing his HIV status. He had argued that it didn’t matter because he had an undetectable viral load and couldn’t transmit the virus. But the lower Swiss court in 2008 wasn’t convinced. Under Article 231 of the Swiss Penal Code and under Article 122, nondisclosure was considered an attempt to engender grievous bodily harm, and he was solely responsible for curtailing the spread of HIV.

One month later, the appeals chamber of the Geneva Court of Justice held him harmless.

What changed in that month was that the long-term work of activists and people living with HIV converged with both good luck and the emergence of the science of viral load and transmissibility. It would take another several years after Mr. S’s acquittal for the law to formally change. But in 2016, concerted work would change Swiss law forever, such that no one with an undetectable viral load has since been convicted of attempting to transmit HIV without also having a malicious intent.

“One should not,” Geneva’s deputy public prosecutor Yves Bertossa told the newspaper Le Temps at the time of the 30-something year-old man’s exoneration, “convict people for hypothetical risk.”

As American state legislatures continue to grapple with how to modernize decades-old laws that criminalize non-disclosure of HIV status and “attempts” to transmit the virus, and as the Swiss statement — the first time U=U entered the world — reaches its 10-year anniversary, we look back on one model of how to do this work. And we start with a woman who has been on both sides of the issue.

An HIV-Negative Woman Turned Positive

Michèle Meyer has a shock of flaming red hair and a temperament that does not suffer fools gladly. And she definitely considered Switzerland’s HIV criminalization laws foolish — even before she herself was living with HIV.

Meyer learned about the laws in the early 1990s, when she and her partner wanted to have a baby. The fact that he was living with HIV and she wasn’t didn’t deter her. She’d decided she was willing to take a risk.

So she asked a doctor what would happen if they just had condomless sex.

He told her, she said, that among the many possible outcomes was that he could be arrested for endangering her and the public’s health.

“It’s crazy,” she said in heavily accented English. “We were two adult people who decided together and there was no violence, no dependency. We were on the same level to decide — so lawmakers have nothing to look for in our bedroom.”

The news that her partner could be prosecuted for doing exactly what she’d asked him to do scared her off from trying to get any more information about how to lower her risk of acquiring HIV during conception. Privately, the couple had condomless sex. And Meyer did get pregnant — the fulfillment of what she called a lifelong “child wish.”

Then, in February 1994, Meyer lost her pregnancy. Ten days after that, she tested positive for HIV.

Suddenly, she said she had to process two things: One was what she described as the cruelty of medical providers, who she said told her, “It’s good that your child is dead, because you are HIV positive.”

The other was her new reality on the other side of the HIV criminalization line. As she put it: “And then to know that I could be sentenced?”

It made her extra careful with later sexual partners. Twice, she said, she kicked men out of bed and out of her house, naked and throwing their clothes after them, for taking off a condom during sex without telling her.

“I was not going to risk going to jail for them,” she said. “And they decided, even without talking to me, to take [the condom] off because they were having fun with the risk? This made me crazy.”

She also took another measure. She said she told partners (women and men): “No one comes into my house without a test — because it’s not my intent to be held guilty for someone else’s infection.”

These were stop-gap measures, though. It would be much easier, she said, if the law weren’t there at all. So when, in 1999, her doctor informed her that she was on stable treatment and couldn’t pass on the virus, she did two things: She tried for and conceived two children — girls now aged 16 and 15, both born without HIV — and she began fighting in earnest for a change to the law.

As a feminist and someone who spent her teen years protesting nuclear power, it was natural for her. First she agitated for her local AIDS service organization to start a support group for women newly diagnosed with HIV. Then she put herself forth as a public figure, someone willing to speak openly about her diagnosis — a rare event at the time.

Most World AIDS Days, she said, you could find her face and her name in the papers, where, she said, she’d “always tell them I have sex without condoms.”

“It’s illegal,” she said she’d tell them. “But if I can’t infect my partner, it’s a crazy law.”

She even tried to find the most conservative cantons — the Swiss version of states — and try to get them to arrest her for exposing her partner to HIV. She’d plan weekend getaways and get amorous with her partner.

“I would later go to the police and tell them, ‘I had sex without a condom,'” she said. “I was waiting for someone to charge me. But we didn’t find one who wanted to bring charges against me. I was too open with the idea.”

Eventually, she found her way onto the Swiss National HIV/AIDS Commission, (abbreviated as EKAF in German), a national group of policy makers, bureaucrats, scientists, doctors and activists, where she said it was other people’s job to be diplomatic. Her life and freedom were at stake.

“As an activist, you can’t be diplomatic,” she said. “Criminalization will not come to an end that way. I’m radically against any criminalization, even if an infection is happening, even if there is a real risk. It’s not OK.”

A Social Worker Turned Lawyer

In the early 2000s, around the same time that Meyer was raising her daughters, a man she had never met was spending time with people receiving treatment for HIV-related conditions elsewhere in the country. And he found himself, he said, confronted with the reality of how HIV stigma alters the trajectory of a life.

People regularly told friends that they were sick with anything but HIV, Kurt Pärli, a wiry man with a thick head of hair, told TheBodyPRO. Cancer was a popular cover story.

“Having the diagnosis of HIV/AIDS led to a social death long before the physical death,” he said, adding that it was clear to him that the criminal laws and the epidemiology law were an extension of this stigma.

At the time, he was a social worker. But when he went to law school, he wondered how to disentangle the legal system from the health of people with HIV.

The first thing that would have to change, he said, was the general understanding of public health, one common in much of the world, including the U.S.: It assumed that criminal prosecution could curtail the spread of a disease. The country’s epidemiology law had been enacted in the 1940s to hold female sex workers liable for transmitting syphilis to “innocent clients,” as public health official Luciano Ruggia told TheBodyPRO.

“The article [231] remained dormant until the late 1980s, when some judges started to use it in HIV cases,” Ruggia said.

In practice, though, Article 231 wasn’t used just to prosecute actual transmission. It was also used to prosecute hypothetical risk — that is, potentially exposing someone to HIV; or, simply, having sex without a condom and/or without disclosure. In July 2008, Switzerland’s Federal Supreme Court in Lausanne even ruled that people could be convicted under the law if they didn’t know they were living with HIV at the time of sex. Another court ruling found that if you have symptoms that might indicate you have HIV, or if you have good reason to believe that someone you had sex with has HIV, you either had to disclose that suspicion or practice safer sex — failing either of which, you risked prosecution.

At a time when people wouldn’t admit to having HIV to anyone, Pärli watched people shy away from HIV testing to avoid being held liable under the law.

“From the perspective of the criminal law, it’s not a question of the two individuals, of if they are willing to take the risk,” he said. “That’s the old way of how to deal with public health. … It wasn’t effective.”

But there was a new way, a legally non-binding public health approach enacted in Swiss AIDS policy in the 1990s — one that held that every person in a relationship is responsible for their behavior and responsible for curtailing the spread of diseases. That approach said that it’s up to each partner to care for themselves, and the more they were able to do that, the better it was for everyone. HIV testing is part of that — but you don’t test if you are afraid of going to jail for having sex, he said.

And you don’t take measures to prevent transmission during conception if you don’t know what they are, Meyer said.

“I will not say that the law is guilty for my infection; that was my responsibility,” she said. “But I see there is a point that I was a threat [to my partner’s freedom] and didn’t seek enough information, just because of the law.”

A Public Policy Approach

Changing Swiss HIV criminalization laws would not be easy. For one thing, the laws used to prosecute people living with HIV are general and apply to any form of assault or transmission of human disease. For another, the Swiss don’t follow the legal concept of binding precedent, said Sascha Moore Boffi, a jurist with the Swiss HIV organization Groupe sida Genève. So what happens in Geneva doesn’t necessarily change a later decision in Zurich or Obwalden. Each case, he said, is decided on an individual basis.

For another thing, there’s no national database of every decision made in every canton. To find out what the courts were doing, Pärli called all 23 of the cantonal courts to get their information.

The results were, perhaps, not a complete picture. Only 62 of 94 courts responded.

But what they told Pärli was significant: Cases against people living with HIV had been going up across the country, from two cases before 1994 to nine cases between 2005 and 2009, with 39 people prosecuted since 1990. Twenty six of those were convicted. And half of those were despite the fact that no one acquired HIV.

Most cases involved new couples having sex without one partner knowing the other’s HIV status or where the person living with HIV had lied about their status. Three people were prosecuted and convicted for having consensual sexual contact with a partner who knew their status and consented to taking the risk.

People who were convicted spent an average of 18 months to two years behind bars, but one case resulted in a three year sentence — that one included a conviction for coercion and assault, according to Pärli’s report.

One person was convicted only of having presented a risk to public health — meaning he wasn’t convicted of having caused any actual harm — and the court ordered a suspended sentence and an obligation not only to disclose HIV status to partners, but also to register every sexual contact with the state.

This put Switzerland’s HIV criminalization rates amongst the highest in Europe, said Boffi.

The Behind-the-Scenes Guy

Luciano Ruggia would prefer you not know his name. He’s not shy — in fact, with his frank manner and expressive hand motions, he’d be more aptly described as gregarious. But he prefers to do his work out of the spotlight.

“That’s where I can achieve more,” he said. “You really have to keep a low profile if you’re inside an administration.”

That’s where Ruggia was in 2006, as EKAF’s scientific secretary, a position within the Federal Office of Public Health. It was part of his job, he said, to present the commission with issues it might tackle. To that end, he read reports from Pärli and attorney Fridolin Beglinger, and discrimination reports by Boffi’s group and others, and listened to the opinions of activists like EKAF member David Haerry.

That’s how he learned about the impact of Article 231, and the epidemiology law, Article 122, on people living with HIV. Ruggia said he considered the law itself ethically wrong and functionally ineffective, but he knew just repealing a criminal statute was a non-starter in a parliament he said was composed primarily of lawyers.

“It’s very bad press to raise” repeal of any criminal statute, he said. “If you look, in every country, the criminal code book only gets bigger.”

And EKAF could recommend a change, he said, but that’s where its power ended.

They needed to find a way to link the law on epidemiology to the criminal code. And it was a stretch, he said.

So nearly two years before the Swiss statement codified U=U’s forbearer into Swiss medical practice, Ruggia did something he wasn’t sure would work. The administration was considering updating the entire epidemiology law, to bring it current from its 1970s drafting, and to address new epidemics, including SARS and H1N1.

What if he could slip into this update a change to the language in Article 231, one that stated people could only be prosecuted if there was actual transmission and if there was malicious intent on the part of the person living with HIV? And what if he could convince others in the administration that this was, after all, a small, technical change not worthy of note?

So he wrote up the amendment and slipped it into the end of the draft bill circulating around the capitol. It went unnoticed in its first year. It seemed to be considered just another little amendment necessary to bring other laws in compliance with the new rules, Ruggia said.

“It was seemingly a little bit harmless,” Ruggia said with a subtle shrug and a twist of the wrist meant to dismiss it.

By December 2007, the change made it into the version of the bill that was released for public comment.

Ruggia was relieved.

And then he took action to try to ensure it stay in there: He drafted up a letter of support for the amendment from EKAF. He called Boffi and his counterparts in the French- and Italian-speaking parts of the country. He asked them to write letters of support for the change, to show its broad support.

Their letters of support were added to the public record. By the time the comment period ended six months later, Ruggia’s amendment went untouched.

“I remember saying, ‘Let’s try this. This could work,'” Ruggia said.

The Doctor Turned Activist

Then something else that Ruggia had been working on behind the scenes came out publicly: a statement in the Bulletin of Swiss Medicine saying that people who have had a suppressed viral load for at least six months, who have no other sexually transmitted infections (STIs), and who are monogamous need not use condoms because they can’t transmit the virus.

This became known as the Swiss statement, a scientific policy intended to allow Swiss providers to talk openly with their patients about their options for conception and other activities, but which resonated around the scientific world, where it was largely lambasted.

For Dr. Pietro Vernazza, M.D., the lead author of the statement, it wasn’t purely scientific. He said he was thinking of HIV modernization while he, Bernard Hirschel, Enos Bernasconi and Markus Flepp drafted the statement, too.

But Vernazza hadn’t heard about it from his own patients in his clinic at a provincial St. Gallen, Switzerland, hospital. There, Vernazza was working with people living with HIV who were forgoing having a family with their HIV-negative partners out of fear of transmitting the virus — a fear, he said, that was not backed up by any case reports of people on effective treatment transmitting HIV. This supported his own clinical experience, and the experience of the Swiss HIV cohort at large.

By 2007, Vernazza had been on the EKAF for eight years and was now serving as its chair. He had the power, but it took Pärli’s advocacy for Vernazza to understand the effect of the law on his patients.

“[Pärli taught us] that not only did we have the highest number of convictions within Europe but also that these convictions were not justified,” Vernazza said. And just like the pointless delay or abdication of children, HIV criminalization laws were pointless, too, he said.

“To me, this is a situation where you can’t just say, ‘OK I’m not involved in politics,'” Vernazza said. “It motivated me to do something against it if I could. And I was in a position with this commission that I was influential enough to use this influence [for my patients].”

He paused and added, “I would consider it my duty in such a commission to fight against the incorrect application of the law.”

Indeed, the conclusion of the Swiss statement makes this specific: “Courts will have to consider [this statement] when assessing the reprehensible nature of HIV infection. From the point of view of the [EKAF], unprotected sexual contact between an HIV-positive person with no other STIs and on effective [antiretroviral treatment], and an HIV-negative person does not meet the criteria for an attempt to spread an illness. It is not dangerous in the sense of Art. 231 of the Swiss Penal Code, nor to those of an attempted serious bodily injury according to Art. 122.”

 

An Opening for Change

By late 2008, the Swiss statement was beginning to find its way into criminal proceedings — and not by accident. Pärli said there was a concerted effort to translate the statement from its scientific source to the legal world.

“The legal world is sometimes like an autonomous planetary system or something,” Pärli said. “There was a need to bring this information to lawyers and to judges and to the courts. But finally, it had an effect.”

Indeed, the Swiss statement came out at the beginning of 2008. By the end of that year, one of the statement’s primary authors, Hirschel, had testified that Mr. S couldn’t have transmitted the virus because his viral load had been undetectable since at least the beginning of 2008. This directly contradicted the statement of a medical examiner during the first trial, that “a risk of contamination remained in a context of undetectable viremia.”

Prosecutor Bertossa dropped charges against Mr. S during the appeal of his conviction. That was followed the next year by another acquittal based on the same grounds, according to a study presented at the European AIDS Conference in 2013.

Collectively, these decisions became known as the Geneva judgments, and they were just as much of a watershed in Switzerland as the Swiss statement.

But for Ruggia, who was still watching his amendment move at a glacial pace through the Swiss legislative process, neither the Swiss statement nor the Geneva judgments were enough.

“Article 231 was still there,” he said. “Even in the case of a judgment that goes up to the federal court, there was no guarantee that the Geneva judgments would be heeded. Usually judges are not as open and progressive.”

Again, lack of the legal concept of binding precedent meant that judges in other cantons were free to make their own judgments.

Arguing Against “Virulent” Laws

So when Pärli’s report came out the following year, in 2009, it didn’t just describe the problem; it also argued that, for many reasons, the law needed to change.

For one thing, it argued that even without the Swiss statement, consent to taking a risk ought to be a defense against prosecution under Article 231 — and protection from HIV is both party’s responsibility. Think of it as an “it takes two to tango” doctrine, a doctrine that conformed with the new Swiss AIDS policy approach to public health.

If both people are culpable, the English-language fact-sheet stated, then it stands to reason that either both should be prosecuted, or neither should.

“If one does not wish to draw this conclusion,” it states, “a restriction or reversal of the application of Article 231 of the Swiss Penal Code would be worth investigating de lege ferenda [in future law].”

But the Swiss statement does exist, he went on to write, making the burden of consent and disclosure “even more virulent.”

“Given that punishment on the grounds of an attempted crime always requires that the accused acts willfully, in cases of unprotected sexual intercourse where the HIV-infected person complies with [the Swiss statement], conviction on the grounds of attempted bodily harm is ruled out,” the fact sheet states.

These issues, the report said, “shows the necessity to review Swiss Supreme Court practice.”

But getting rid of the disclosure and consent rule is politically unfeasible, Boffi said. This is because Swiss law applies the same standards of informed consent to HIV disclosure that govern informed consent in the law in general, such as before surgery. So “it’s difficult to find a way to mitigate that without weakening other forms of informed consent that we want to keep,” Boffi said.

There is one way to avoid disclosure, though: Swiss law holds that practicing accepted rules of safer sex is a defense against prosecution.

“As far as [the Article 231] was concerned, our Supreme Court decided that when protection was used, no disclosure was necessary,” said Boffi. “It didn’t say a condom needed to be used, only that if the person abided by the rules of safer sex, that person was free of the obligation to disclose.”

So Boffi and others saw an opening there: If treatment was considered protective, it could influence the law and legislators.

“Our argument was that it’s very simple: It’s very important to take the HIV test, because now there’s treatment — testing is an opportunity for treatment — so every hurdle in the way of letting them test is not cost effective for public health,” Pärli said. “As long as the criminal law was persecuting individuals who are HIV positive and took some risks, there was no incentive to take the test — especially for those who are acting not all the time in safe ways. It’s very important to reach those people, and the fact that they were afraid after being tested that they would be criminalized, that was an important point.”

And with what the Swiss statement revealed about how effective treatment prevents people who live with HIV from transmitting the virus, even if they are not using condoms, overcoming that barrier to testing and treatment is even more important.

“The more sick one is, the more risk they have to transmit the virus,” Päril added. So the law just didn’t make sense. “One of the important lessons we learned was that it’s important to act with patients and not against them.”

A Switch and a Scramble

But just as the introduction of the epidemiology law overhaul bill went to parliament in 2010, everything changed again.

“Here I was, I was very happy, I was not screaming. I was keeping a low profile because the article [amendment] was there and nice and fine,” Ruggia said, his words speeding up and becoming more clipped. “And then two days before [it was introduced to Parliament] … they changed the article.”

It turned out that someone from the Department of Justice, at the last minute, had noticed the article and pressured officials to remove it from the bill. They did, and Ruggia’s bosses raised no objection.

Suddenly, Ruggia went from hopeful to both furious and scared: anger at his bosses for not fighting the change, he said, and anger that the change went against the expressed comments of organizations that responded to the proposal (comments he had encouraged); and fear because “the odds change in parliament. You don’t know what’s going to happen.”

“I told myself, we cannot leave it like this,” he said. “Working with the press is always a risk. Working with politicians is always a risk. If you want to achieve something, you have to try to take some risks.”

So despite the fact that he was having to do exactly what he didn’t want to do, and despite the fact that he wasn’t sure he even could do what needed to be done, Ruggia started talking to connections in parliament to try to undo the change.

As in the U.S., the process of bill approval is long, and starts in a committee — in this case, in the national council commission on health of the lower house of Switzerland’s parliament. There would be a hearing on the bill.

Ruggia decided the commission needed to be at that hearing, he said. But they could not just invite themselves.

“I needed someone from the committee to invite us,” he said. “I knew someone in the committee and I asked him, ‘You should get me an invitation.'”

First hurdle cleared: The invitation was issued.

But Ruggia didn’t want to be the one up there talking publicly. “I prefer to get people better than me to speak in public,” he said.

He managed to line up a few lawyers and policy analysts. Pärli was out of the country, so he asked other attorneys to speak on the law and public health.

That’s the next hurdle sorted, he thought.

Then he primed the pump: As the hearing approached in 2011, he asked Vernazza to speak to a newspaper reporter about the Swiss statement and the scientific argument for changing the law. They needed, he said, “an article in the press supporting the change.”

Next, he studied the committee members again and tried to figure out who on the committee would be his biggest challenges. Once again, Ruggia’s goal was to draw as little attention to the change as possible, for fear of attracting vocal opposition. So he looked at the committee members in the far right party, and discovered that someone in Ruggia’s network knew one of the conservative committee members pretty well.

It was a stroke of luck, something Ruggia could never have expected, he said. So that member of Ruggia’s network met privately with the committee member and, in Ruggia’s words, “had a discussion before the hearing.” Ruggia said this wasn’t to lobby, but to educate. He declined to name the member of Parliament or the member of his network who met.

And all along organizations like UNAIDS and others were issuing reports and studying HIV criminalization laws around the world, to keep a spotlight on the issue.

Then came October and the day of the hearing. The article came out. Experts testified. The Swiss statement was presented into evidence as a statement from an official group of the parliament.

And the far right party members, he said, stayed mum.

“We didn’t get any opposition,” he said.

The revised amendment still required people to inform their partners of their HIV status, regardless of viral load. And while it made penalties more severe for people who purposefully transmitted HIV, it still allowed courts to punish people who passed on the virus unintentionally, according to a 2011 report from the newspaper Neue Zürcher Zeitung.

It wasn’t the victory that Ruggia wanted. But, he said, it was better than leaving the article as it was, with no changes at all.

Change From the Left

As the bill moved from committee to the Parliament at large, it was a touchy time, said Pärli.

On the one hand, parliament was overhauling its whole epidemiology law — not just its approach to HIV. And most of the discussion was about whether and what vaccines should be required for children to attend school.

“This was an advantage,” said Pärli, “because there was not a huge debate about this particular issue. [HIV] wasn’t the focus.”

On the other hand, they feared the day that HIV did become the focus, and what would happen.

“We were a bit afraid — what will happen when one day the Parliament is debating the issue of HIV/AIDS and what protections should be enacted into law, and then to argue it’s against the public health if the transmission of HIV is criminalized,” said Pärli. “This is quite crucial — how to convince ordinary members of parliament who are not specialists in public health.”

And how to do it, he said, in a rational way when, as it comes to HIV, “the questions are not discussed in a rational manner.”

So Pärli, Ruggia and their networks tried to keep the issue out of the limelight, avoiding reporters, and praying that a big splashy case of someone intentionally transmitting HIV wouldn’t take over the news and the consciousness of members of Parliament. When occasionally it did bubble to the surface in a positive way, Ruggia said he would send the article to his contacts in Parliament.

“You don’t just stop,” he said. “You send an email here or there.”

Meanwhile, Meyer was getting more and more irritated with the law as it was amended.

“I was really upset with them [on EKAF],” she said. “It wasn’t just about the law for me. My big hope was to change the stigma, end the stigma.”

She was convinced that EKAF, Ruggia and the rest of them had it backward: prevent discrimination, and then everything will get easier. For her, it wasn’t really about the science.

“Because then it’s just a virus, and you can have information and testing and treatment,” she said.

So she kept pushing, talking to her contacts in Parliament as Ruggia talked to his, advocating for a better change to the law.

“I was so glad there was one man in Parliament who really understood what was needed,” she said.

That man was Alec von Graffenried, representative of Switzerland’s Berne region at the lower chamber of parliament, known as The National Council, at the time of the law’s passage. He was a member of the Green Party and on the National Council’s Legal Affairs Committee. Meyer said she’d spoken with him in the past, though she didn’t speak directly with him about this bill. Meyer also said she knew people who knew him. And she was constantly talking to them about how wrong the law was to be there at all.

Similarly, Ruggia said he hadn’t approached von Graffenried, either. But somehow, von Graffenried found articles on the law. He told the UN Development Programme and the Inter-Parliamentary Union in a report issued later, that he simply felt it was a good opportunity to bring the law in line with the science of HIV.

So in 2013, when the bill finally made it to the floor of The National Council, von Graffenried presented a last-minute amendment that said that the law should only prosecute the rare case where someone with HIV maliciously spreads the virus — rather than people who, he said, were engaged in “normal sexual relationships.”

It was a proposal that shocked Meyer, Ruggia — everyone.

“I was not expecting that at all,” Ruggia said. And even more surprising, he said, von Graffenried’s proposal was a well formulated one.

“He was taking the law in the draft and saying, ‘We can formulate this better,'” he said. “I think he’s the only one who noticed Article 231 in the bill at all.”

For his part, von Graffenried has said the new language just made more sense.

“We can still prosecute for malicious, intentional transmission of HIV,” he’s quoted as saying in the UN report. “But I expect those cases will be very rare. What has changed is that now people living with HIV — which these days is a manageable condition — will be able to go about their private relations without the interference of the law.”

All the evidence, he said, suggests that “this is a better approach for public health.”

His amendment passed 116 to 40.

It would take another three years for the law to go into effect: the public still had to vote on the new epidemics law, which included the amended Article 231. Anti-vaccine advocates put a proposition on the ballot to challenge the vote. , based on a proposition put forward by what Ruggia described as an anti-vaccine. The vote failed.

The report concludes that, as a member of the Justice Committee, von Graffenried was well placed to make this argument. This should be a lesson to advocates, the report states.

“Campaigners and parliamentarians need to ensure that all the relevant departments are lobbied when working on such changes,” the report states.

For Boffi, the result shows that long-term advocacy is worth it. “What can be said is that the years and years of vocal opposition and lobbying and advocacy and information — and especially information based on concrete evidence — did have an effect in the end. We did have the majority of parliament say this wasn’t an issue. It does confirm that advocacy, even though in the short term it doesn’t succeed, in the long term it can create the necessary conditions that lay the groundwork and then benefit from the fruits.

Still, there was more than a little luck involved.

“It could have gone the other way,” he said. “We were very fortunate to have that one member of parliament. … I don’t believe he ever did anything related [to] HIV before that.”

The Living Legacy of Stigma

Groupe sida Genève’s Boffi joined the organization long after the groundwork had been laid for Article 231’s modernization. He came on in 2010, after Ruggia’s draft amendment to the law, after the Swiss statement, after the Geneva judgments.

He remembers clearly his colleagues coming home from the International AIDS Society conference in Vienna that year, and how so much of the discussion was on the Swiss statement and how dangerous it might be.

Today, a decade later, Boffi said that the impact of both the law change and the Swiss statement has been immense.

“The relief [among people living with HIV] was palpable,” he said. “People were saying, ‘Oh this is wonderful. I can seriously consider having sex again, and not be panicked or anguished that I’m putting my partner at risk.'”

But even in Switzerland, the stigma isn’t gone. There’s less structural stigma there, he said. But it’s still around. He spends a chunk of his time working with migrants being deported to countries where they won’t have access to their HIV treatments.

And people are still being prosecuted for HIV transmission, he said. Again, there’s no central database for cases — and in Switzerland, he said people often don’t seek out organizations like Groupe sida Genève when they are arrested, as people do in the U.S. Anecdotal cases reveal that people who are not on treatment are still being unsuccessfully prosecuted, he said.

“This aspect has been forgotten,” he said. “We haven’t got a solution for them as far as criminalization is concerned. They shouldn’t be prosecuted either.”

And even if someone is on treatment, it doesn’t always protect people. Since the update of the epidemiology law, he said he’s watched the HIV advocacy community somewhat disband. They are not still organizing around the issue.

But the Swiss statement, as much of a watershed as it is, is not enough to end HIV criminalization, Boffi said.

“We have prosecutors now who are starting to try to have judgments where the simple fact of transmission is considered proof of mal-intent,” he said. “For the time being, this hasn’t gone further than the lower courts and fortunately there’s been no conviction in the lower courts yet. But it is a risk, and it has to do with the fact that, rather than learn from the campaign that long-term advocacy is necessary, we did the exact opposite.”

Today, he said, U=U is a new concept in Switzerland.

“It’s strange,” he said. “We forgot our own lessons.”

Heather Boerner is a science and healthcare journalist based in Pittsburgh. Her book, Positively Negative: Love, Pregnancy and Science’s Surprising Victory Over HIV, came out in 2014.

Published in The Body on February 22, 2018

 

 

 

 

 

Mexico: The Mexican Secretary of Health should avoid discriminatory terminology and focus on stopping the criminalisation of people with HIV, state activists

By using the word “contaminated” the Mexican Secretary of health has committed a crime, state activists

When using the word “contaminated” against patients with the Human Immunodeficiency Virus (HIV), the Secretary of Health Arturo Iran Suárez Villa committed a crime by using a term not compliant with the official Mexican regulation 010, revealed in a position statement the Mexican Network of Organizations against the Criminalization of HIV, composed of 32 civil society organizations and member of the HIV Justice Worldwide initiative.

In support, they said that it is unacceptable for a Secretary of Health to refer to people with HIV as contaminated.

“In accordance with the methods, principles and criteria of operation of the components of the National Health System enunciated in the MEXICAN OFFICIAL REGULATION NOM-010-SSA2-2010, FOR THE PREVENTION AND CONTROL OF INFECTION BY HUMAN IMMUNODEFICIENCY VIRUSES, instruments, tissues, blood are contaminated but not people. The word is discriminatory and, in Mexico, it is a crime, “they said.

For this reason, they urged him to consult the Reference Document. UNAIDS Terminology Guidelines (UNAIDS 2015), to familiarise himself with the correct terms to be used when talking about HIV and AIDS.

“The concern of Dr. Suárez Villa – as head of the sector – should focus on avoiding any form of criminalization of people with HIV in Veracruz, since these contravene the International Guidelines on HIV / AIDS and Human Rights (UNAIDS, 2016), as it is embodied in article 159 of the Code, “they indicated.

It should be noted that HIV Justice Worldwide is an initiative composed of national, regional and global civil society organizations, working together to end the criminalization of HIV.

The founding partners are: AIDS Rights Alliance for South Africa (ARASA); Canadian Legal HIV / AIDS Network; Global Network of People Living with HIV (GNP +), HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women Network-USA. (PWN-USA); and Sero Project (SERO). The initiative is also supported by Amnesty International, the International HIV / AIDS Alliance, UNAIDS and UNDP.

Published in Palabras Claras, on January 30, 2018

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Con vocablo “contaminado”, incurrió Suárez Villa en un delito: activistas

Al usar la palabra “contaminado” contra los pacientes con el Virus de Inmunodeficiencia Humana (VIH), el Secretario de Salud Arturo Irán Suárez Villa incurrió en un delito al usar un término no aceptado por la Norma Oficial Mexicana 010, revelaron en un posicionamiento la Red Mexicana de Organizaciones contra la Criminalización del VIH, conformada a su vez por 32 organizaciones de la sociedad civil y suscrita a la iniciativa HIV Justice Worldwide1.

En su sustento, dijeron que es inaceptable que un Secretario de Salud se refiera a las personas con VIH como contaminados.

“De acuerdo con los métodos, principios y criterios de operación de los componentes del Sistema Nacional de Salud enunciados en la NORMA OFICIAL MEXICANA NOM-010-SSA2-2010, PARA LA PREVENCION Y EL CONTROL DE LA INFECCION POR VIRUS DE LA INMUNODEFICIENCIA HUMANA, se contaminan los instrumentos, los tejidos, la sangre pero no las personas. La palabra es discriminatoria y, en México, es un delito” indicaron.

Por lo que le exhortaron a consultar el Documento de Referencia. Orientaciones Terminológicas de ONUSIDA (ONUSIDA 2015), para que se familiarice con los términos correctos a usarse que cuando se habla del VIH y del sida.

“La preocupación del doctor Suárez Villa –como cabeza de sector– debería enfocarse en evitar cualquier forma de criminalización a las personas con VIH en Veracruz, ya que estas contravienen las Directrices Internacionales sobre VIH/sida y los Derechos Humanos (ONUSIDA, 2016), tal y como se encuentra plasmado en el artículo 159 del Código” indicaron.

Cabe destacar que HIV Justice Worldwide (Justicia por VIH en todo el mundo) es una iniciativa compuesta por organizaciones de la sociedad civil nacionales, regionales y mundiales, trabajando en conjunto para terminar con la criminalización del VIH.

Los socios fundadores son: SIDA y Alianza por los Derechos para Sudáfrica (ARASA); Red Legal Canadiense de VIH/SIDA; Red Mundial de Personas Viviendo con VIH (GNP+), Red de Justicia para el VIH; Comunidad Internacional de Mujeres Viviendo con VIH (ICW); Red de Mujeres Seropositivas-E.E.U.U. (PWN-USA); y Proyecto Sero (SERO). La iniciativa también es apoyada por Amnistía Internacional, la Alianza Internacional de VIH/SIDA, ONUSIDA y PNUD.

US: Final report of the Georgia House Study Committee on access to care calls for modernisation of Georgia’s HIV criminal laws

A Moment of Outrage with a Silver Lining

Betty Price’s comments about HIV spark backlash, while her committee quietly issues a well-reasoned critique of Georgia’s HIV criminal laws

by Catherine Hanssens, CHLP Executive Director

Back in October 2017, there was a tsunami of outrage and media coverage in response to comments made by Georgia State Representative Betty Price during a committee hearing on access to HIV care and prevention. In response to testimony about the problem of access to the remarkable health and prevention benefits of current HIV treatment in Georgia, Price queried:

“… [A]re there any methods legally that we could do that would curtail the spread? I don’t want to say the quarantine word, but… It seems to me it’s almost frightening, the number of people who are living that are potentially carriers… with the potential to spread, whereas in the past they died more readily and then at that point they are not posing a risk. So we’ve got a huge population posing a risk if they are not in treatment.”

Even if Price’s comments were, as she later said, posed to provoke discussion, elected officials have no legitimate excuse for suggesting that people living longer with HIV are a public health problem, or that quarantine should ever be on the table.

Unfortunately, the view that sexually active PLHIV need to be “legally” contained is still pretty widely shared, yet rarely gets the press Price’s comments received. Media reports of a prosecutor referring to HIV, a treatable disease, as the equivalent of a “death sentence,” or calling sex while living with HIV the equivalent of pointing a loaded gun at someone’s head have yet to receive the type of outrage leveled at Price. What’s worse, Georgia’s criminal HIV law has effectively quarantined multiple PLHIV through felony convictions for sex without disclosure without any comparable national cry of outrage in response.

Media coverage of the Price controversy glanced over the substance of these hearings and what really should have been the big news—that local HIV advocates assembled an impressive panel of experts to testify about barriers to HIV treatment, including what likely was a first: a representative of the federal Centers for Disease Control and Prevention presenting powerful testimony in support of modernizing Georgia’s HIV criminal law.

And there’s more. Just a few weeks ago, in December 2017, the committee released its Final Report of the Georgia House Study Committee on Georgians’ Barriers to Access to Adequate Health Care. The report’s findings and recommendations are surprisingly progressive, and are based in no small part on the efforts of Georgia advocates who made sure committee members were equipped with information about the harms of Georgia’s HIV criminal laws and the need for reform.

In analyzing HIV care and prevention, the Committee’s report found that “[c]riminal exposure laws had no effect on detectable HIV prevention.” The report’s analysis goes on to echo the Department of Justice’s 2014 recommendation that these laws should be eliminated except in cases where a separate sex offense such as rape and an actual risk of transmission is involved; or when evidence clearly demonstrates that the person acted with the intent to transmit HIV and engaged in behavior significantly likely to do so. The report also cites a 2013 resolution from the Presidential Advisory Council on HIV/AIDS (PACHA), noting the failure of HIV criminal laws “to account for (1) the prevention measures, (2) the reality of disproportionate sentencing that often occurs, and (3) the fact that the laws are based on outdated beliefs about HIV transmission.”

Other highlights from the report’s findings on HIV criminalization include:

  • A remarkably salient and progressive observation about disparities affecting sex workers:

“Consider that both prostitution and solicitation of sodomy are misdemeanors under Georgia law when the accused is not infected with HIV. These crimes only become felonies when the accused merely knows they are infected with HIV and fails to disclose their status. Thus, the current [HIV law] falls short by penalizing behavior that does not require the type of intentional behavior for which an enhanced penalty is typically reserved….”

  • Recognition of the inequity of allowing prosecution of PLHIV under both an HIV criminal law and other sections of the criminal code:

“In Georgia, prosecutions of those infected with HIV whose actions fall under [GA’s HIV criminal law] has not been limited to those code sections. In fact, there are documented cases where the state has pursued charges of aggravated assault against an accused in such situations. This inequitable disparity in prosecution of HIV-infected people should be addressed in any reforms made to these laws.”

  • Recognition that Georgia’s HIV criminal law creates additional untenable dangers for survivors of assault:

“Because Georgia’s HIV law] criminalizes behavior upon mere knowledge of status, there is fear among those living with HIV of prosecution under this statute when they are victims of a sexual assault involving behaviors outlined in this code section. To curb this fear and empower such victims to report these serious assaults, the law should be clarified to account for these scenarios by explicitly exempting such victims from prosecution.“

In short, a legislative committee in a Southern state that included four Republicans and only one Democrat has issued a report calling for modernization of Georgia’s HIV criminal laws so that they are consistent with current scientific knowledge, focus more on intent to transmit rather than knowledge of status, and incorporate recognition of risk reduction measures. In the discussion supporting these recommendations, the committee notes opportunities and shared responsibility for preventing HIV transmission in intimate relationships involving people living with HIV and their HIV negative partners. It highlights the unacceptable disparities in the use of unique liability standards and onerous punishments against people living with HIV; the legitimacy of HIV positive sexual assault survivors’ fear of reporting crimes against them because they know the prosecutorial table could be turned against them; and the inequity of turning a potential misdemeanor into a serious felony when a sex worker is living with HIV.

This is big news and important progress for which Georgia advocates deserve a great deal of credit. The Committee’s findings should also be a call to action for advocates working to modernize these laws across the country. In a challenging political climate, where we see a frustrating lack of outrage among the press and the general public when it comes to HIV criminal laws, outcomes such as this demonstrate that while the substantive work may not grab headlines, it will have a more profound, lasting influence on public health and policy.

Canada: Prosecutions should not hinge on viral load, punishing people lacking access to treatment, but on actual, intentional transmission

Ontario, Canada Moves to Reduce HIV Non-Disclosure Prosecutions, Leaves Behind PLHIV Lacking Effective Health Care

Changes to HIV criminalization laws in Canada highlight the importance of the Consensus Statement on HIV TasP in Criminal Law Reform urging that prosecutions not hinge on an individual’s viral load but on actual, intentional transmission.

by Kate Boulton, CHLP Staff Attorney

Earlier this month Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins issued a joint statement announcing that Crown Attorneys will no longer prosecute cases of HIV non-disclosure where the person living with HIV has had a suppressed viral load for at least six months. Their rationale is that “HIV should be considered through a public health lens, rather than a criminal justice one, whenever possible.”

The statement occurred in tandem with the release of a report by the Canadian Department of Justice calling for a significant shift in the way cases of HIV non-disclosure are treated by the Canadian criminal justice system. The report concludes that criminal liability should not apply in instances where a person was on treatment, where a condom was used, or in cases of oral sex because these circumstances do not pose “a realistic possibility of transmission.”

Of course it makes sense to acknowledge that any move to reduce the number of prosecutions for HIV non-disclosure in Canada is a good thing. That said, the Ontario AG and Health Minister’s announcement does not go nearly far enough; it suggests that the appropriate “public health lens” is simply to narrow the discriminatory criminal legal system targeting of people living with HIV to those without effective health care.

statement issued jointly by the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO), Canadian Positive People Network (CPPN), the Ontario Working Group on Criminal Law + HIV Exposure (CLHE), and the Canadian Coalition to Reform HIV Criminalization essentially makes that point, observing that the Ontario announcement “falls well short” of even the relatively modest recommendations made in Justice Canada’s report. Citing the Community Consensus Statement released in November 2017 by the Canadian Coalition to Reform HIV Criminalization (CCHRC), the organizations stress that “criminal prosecutions should be limited to cases of actual, intentional transmission of HIV.”

Earlier this year, the Center for HIV Law & Policy and partners addressed precisely this issue in the Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform. The Consensus Statement cautioned against the use of viral detectability as a bright line test in HIV criminal law reform.  By explicitly relying on viral detectability as a dispositive factor in the decision to prosecute or not prosecute someone, the announcement in Ontario manifests the major concerns articulated in the Consensus Statement. 

The Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform outlines how reliance on viral detectability in HIV criminal law reform efforts poses a number of harmful, if unintended, consequences:

  • Leads to using a person’s health status or access to health care as determinative of guilt or innocence, rather than a demonstrated intent to do another person harm;
  • Provides support to the misguided perception among prosecutors and policymakers that HIV is somehow easy to transmit or that sex without the benefit of treatment is inherently “risky,” and that an HIV diagnosis is akin to a “death sentence.”
  • Obscures or deemphasizes other essential arguments for HIV criminal law reform, including the right of PLHIV to be free from state-sanctioned stigma and discrimination on the basis of health status alone, and fundamental principles of fairness and justice.

National HIV data in Canada illustrate the problem this approach poses for nearly half of all Canadian PLHIV. At the end of 2014, just over half (54%) of the estimated total PLHIV in Canada were virally suppressed.[1]

Regardless of the country, HIV law and policies must reflect the hard fact that disparities in access to treatment and the ability to reach long-term viral suppression inevitably interact with disparities in the criminal legal system. The synergy between these two discriminatory and deeply unequal systems will result in compounded harm for communities that are already disproportionately affected by HIV criminalization:[2] sexual and gender minorities,[3] Indigenous communities,[4] individuals experiencing poverty or homelessness, people who use drugs,[5] sex workers,[6] and people of color.[7]

Staff from the Canadian HIV/AIDS Legal Network have also flagged this tension, writing in a June 2017 blog post that advocates must be mindful of how new scientific advancements are incorporated into HIV criminal reform efforts:

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

The Center for HIV Law & Policy welcomes Canada’s efforts to move away from the discriminatory and harmful criminalization of PLHIV. But Canadians deserve a more just, inclusive, and transformational conception of HIV criminal law reform that leaves no one behind, and which does not serve to reproduce and entrench inequalities in the public health and criminal legal systems.

More resources can be found on our website: www.hivlawandpolicy.org and at www.hivtaspcrimlaw.org



[1] https://www.canada.ca/en/public-health/services/publications/diseases-conditions/summary-measuring-canada-progress-90-90-90-hiv-targets.html (As of 2014, approximately 80% of PLHIV in Canada were diagnosed. 76% of those diagnosed were receiving ARV treatment, 89% of whom were virally suppressed).  See also Peter Rebeiro et al., Sex, Race and HIV Risk Disparities in Discontinuity of HIV Care After Antiretroviral Therapy Initiation in the United States and Canada, 31 AIDS Patient Care & STDs 129 (2017).

[2] http://www.aidslaw.ca/site/hiv-criminalization-in-canada-key-trends-and-patterns/?lang=en (“[T]he [HIV] criminal law is increasingly used against people living with HIV from marginalized populations. Since Mabior, the proportion of Black men charged in HIV non-disclosure cases has grown . . . The proportion of gay men charged in HIV non-disclosure cases has also increased.”

[3] See, e.g. http://www.catie.ca/en/fact-sheets/epidemiology/epidemiology-hiv-gay-men-and-other-men-who-have-sex-men

[4] http://blog.catie.ca/2016/10/04/we-need-to-address-the-unique-and-complex-issues-of-indigenous-people-living-with-hiv/

[5] http://www.catie.ca/fact-sheets/epidemiology/injection-drug-use-and-hiv-canada

[6] See, e.g., http://pubmedcentralcanada.ca/pmcc/articles/PMC4704989/

[7] http://online.liebertpub.com/doi/abs/10.1089/apc.2016.0178http://www.accho.ca/portals/3/documents/acb_strategy_web_oct2013_en.pdf(In 2009, African, Caribbean, and Black people represented an estimated 19% of people living with HIV in Ontario, with a relative rate of heterosexual HIV acquisition that was 24 times higher than among others infected through heterosexual contact.)

US: Georgia Coalition to End HIV Criminalization seeks re-evaluation of state's HIV criminal laws

Are state’s HIV laws unfair? Activists say it’s time for change

Nina Martinez moved to Georgia from Washington, D.C., in 2005. Just a few months after she settled into her new Atlanta home, she learned about Georgia’s criminal laws regarding people disclosing their HIV status to others. It personally changed things for her.

“As a person living with HIV, I didn’t even form relationships because I didn’t want someone who was just mad at me, who said, “ ‘She didn’t tell me she was HIV-positive,’ ” said Martinez. “I haven’t minded being single for the last 12 years or so, but it’s not necessarily by choice. I guess.”

The Georgia laws that Martinez is referring to are almost 30 years old. They state that people with HIV can serve jail time for not disclosing their HIV status to others in certain situations. Those situations include having sex with someone; sharing a needle; performing paid sex work; or donating blood, body fluids, body organs or body parts. People with HIV can be imprisoned for up to 10 years for any of these violations.

The sentence goes up to 20 years of prison time (and no less than five years) for a person with HIV to put their body fluids on a peace office or a correctional officer, while the officer is on duty. This includes the acts of biting, spitting or throwing bodily fluids such as blood, semen, vaginal secretions, saliva, urine and feces.

Numerous other states also have such laws, and their purpose is obvious: to prevent people from deliberately infecting others with HIV. There have been cases of people doing so.

But with improved understanding of HIV transmission, and scientific strides that have made infection less deadly, critics say the laws are largely outdated..

Martinez says the current Georgia laws are unfair because they allow prosecution of people who did not intend to transmit the disease, and even people who had taken precautions against transmission, like using condoms or taking HIV medication. And she says the disclosure laws create a “he said, she said” situation, because it’s hard to prove what people in an intimate relationship communicated to each other.

“This law does not allow me to provide a good defense for myself against cases where somebody might falsely accuse me of not disclosing,” said Martinez. “It doesn’t require that I actually harm someone for me to be prosecuted. And that’s not right.”

“I just want the ability to be able to have somebody else be legally responsible for their own health,” Martinez continued. “Like why am I legally responsible?”

A movement to change HIV laws has been under way for some time. Martinez is one of the steering members of the Georgia Coalition to End HIV Criminalization, an advocacy group.

The coalition would like to see several changes to Georgia’s current code. One of those changes would be a requirement that a person be prosecuted only if there’s proof of intent to transmit HIV.

“Another thing that we want to see is to get these laws aligned with science,” said Sequoia Ayala, a lawyer and policy fellow at Sister Love, and a member of the Georgia Coalition.

The CDC has stated that the risk of transmission of HIV from biting, spitting or throwing fluids is negligible.  Because of this, the coalition wants to see that section of the law removed. Assaults with bodily fluids would still be illegal, but the offender’s HIV status would not be relevant.

The current statute does not consider any measure a person with HIV has taken to prevent the risk of transmission. This includes the use of a condom or adherence to antiretroviral medication regime.

“We know now that if an individual has access to their medication, and they have taken the medication, and have achieved a viral load of less than 200 copies, they’re unable to transmit HIV via sex,” said Ayala. “And yet the reality is that an individual being adherent to their drugs does not relieve them of any culpability.”

After several years of discussion with the coalition, the Georgia Legislature is now considering the issue. In the spring, Rep. Sharon Cooper (R-Marietta), four other House representatives and four members of the medical community formed a study committee focused on addressing barriers to adequate health care in Georgia.

The House study committee met in mid-October to discuss HIV laws, and recently released a final report. Possible changes, in line with the coalition’s goals, and best practice recommendations released in 2014 by the U.S. Justice Department were outlined in the final report.

The changes include removing most HIV-specific criminal penalties. But penalties would remain in the following situations: If an HIV-positive person commits a sexual assault where there is a risk of transmission, or when a person is aware of being HIV-positive and intends to transmit the virus, and there is a significant risk of transmission.

The final report said that if people with HIV are taking medication, they should be able to present that as a defense in an HIV criminal case.

Though the committee recommended significant changes to the law, no immediate action was outlined. In fact, Cooper told one of the presenters at the October study committee meeting not to expect any changes in Georgia’s HIV criminal law in the next year.

“There is a time for everything,” said Cooper. “And next year’s session is probably going to be really, really short. Probably not the time to introduce any new legislation on certain things. But certainly this is information to look forward to.”

A mixed picture nationally

According to 2017 statistics from a national advocacy organization, the Center for HIV Law and Policy, 34 states have HIV-specific criminal laws. In six of those states, people who are convicted under the law are required to register as sex offenders. Over the past nine years, 303 people with HIV have either been arrested or charged under these laws.

In Georgia, at least 12 people have received lengthy prison sentences for not disclosing their HIV status. Other recent news stories of alleged reckless conduct by people with HIV may add more to that list

The coalition says these cases “required characterizing otherwise normal and legal behavior as criminal for no reason other than the defendant’s HIV status.”

Several states have been re-evaluating their HIV criminal laws. Texas repealed its statutes in 1994. Illinois revised its laws in 2012, and Iowa passed revisions in 2014.

In 2016, Colorado repealed two of its HIV criminal laws and changed language in other statutes to regard HIV like other sexually transmitted diseases. In October, California changed exposing someone to HIV from a felony to a misdemeanor, treating the virus like other STDs under the law.

Every state in the Southeast except Alabama has criminal laws related to HIV. Right now, Florida and Georgia seem to be the only two states in the region that are looking at changes. In May, the Florida Legislature considered changing HIV-related felonies to misdemeanors. It failed in the Senate, but legislators will likely re-introduce it next year.

And now Georgia has the study committee’s recommendations.

Rep. David Dreyer (D-Atlanta), who was not a member of the House study committee, is firmly for changing the HIV laws. But he thinks just as Rep. Cooper predicted, real action may take some time.

“I think these [laws] were enacted when people were afraid of HIV. When the science might not have been in on how HIV gets transmitted. And it was just a reaction out of fear, rather than science,” said Dreyer. “But these things do take a few years,” said Dreyer. “And this issue is going to be important in policy circles for years to come.”

Martinez is determined to keep fighting for reform, even if it takes years.

“Our HIV criminal laws don’t even fit the attributes of traditional criminal laws. Criminal law says you have to have intent to harm and you acted in a way that made harm likely,” said Martinez. “Our current Georgia law does not require intent to transmit or actual transmission. It literally only requires that you didn’t say something you should have said.”

Victoria Knight is a graduate student studying health and medical journalism at the University of Georgia. She also works as a health reporter for WUGA-FM, the Athens-area NPR station, and has a bachelor’s degree in microbiology from the University of Tennessee. You can follow her on Twitter at: @victoriaregisk

Published in The Pulse on Dec 16, 2017