US: Illinois modernises its HIV-specific criminal law

By Ramon Gardenhire (from AIDS Foundation of Chicago)

In my role as director of government relations for the AIDS Foundation of Chicago (AFC), I have to come to terms with the reality that the legislative process often means having to make ugly compromises.

This sentiment hit home this past legislative session, when the Illinois General Assembly passed a bill that would amend the state’s law that makes exposing someone to HIV a crime.

The Illinois criminal transmission of HIV law, on the books since 1989, has no basis in science, discriminates against people with HIV, and stigmatizes HIV.

AFC strongly opposes the law and fights for its repeal.  However, when it became abundantly clear that SB 3673 was going to pass with overwhelming support, we made a strategic decision to work the bill’s sponsor to minimize the legislation’s harm as much as possible.

We decided to make a bad law better.

SB 3673, introduced by Sen. Dale Righter (R – Mattoon) and sponsored in the House by Rep. Jim Sacia (R – Freeport) unanimously passed both chambers in the Illinois General Assembly. It amends the current HIV criminal transmission law to allow prosecutors to access medical records to learn if someone knew their HIV status, a fact that has to be established before an individual can be prosecuted.

This bill was a response to a tragic case in Whiteside County, Ill., in 2009, involving a man who allegedly knowingly exposed several women to HIV. The state’s strong HIV confidentiality law prevented police from accessing the suspect’s medical records to determine if he knew he had HIV. After charging him with 13 counts of criminally transmitting HIV to another person, the man was only sentenced with one count. There was no way to prove that he had knowingly exposed his partners to HIV.

We fear that the amendment to the law would deter individuals from testing for HIV because they could be prosecuted for criminal HIV transmission if they learn their status.  Earlier versions of the bill would have allowed access to social service agency and counseling records; AFC and allies were able to remove this provision, which would have had a chilling impact on testing and risk-reduction counseling.

AFC and our partners, ACLU of Illinois and AIDS Legal Council of Chicago, were able to negotiate significant changes to the underlying law in return for not working against the provision that allowed access to medical records.  The changes we made are below.  This bill:

1.    Requires that prosecutors prove that an individual specifically intended to transmit HIV to another individual  – This is an increased legal standard that prosecutors must meet and consider before bringing criminal charges.

2.    Limits acts of transmission to only “sexual activity without the use of a condom” – Prosecutors cannot charge individuals for activities that will not transmit HIV, such as biting or spitting.

3.    Defines the term “sexual activity” to include only sexual acts that include insertive vaginal or anal intercourse – This means no more criminal transmission cases for oral sex or kissing.

4.    Exemption from prosecution if a condom is wore during sexual activity – No more criminal charges if a person uses a condom.

Although the amended law significantly narrows the situations that could result in prosecution for criminal transmission, these cases are likely to always involve “he said he said” or “she said” cases that happen between the sheets with no witnesses.

It will be one person’s word against the other to determine if the couple used a condom and which sex acts they engaged in.  Cases will hinge on whether the infected partner disclosed his or her HIV status before having sex. Too often, former partners press charges for criminal transmission as retaliation when a relationship has soured.

The bill does include an important protection against prosecutorial abuse.  Judges must approve all requests for medical records, and the judge reviews records and determines if they are before they are turned over to prosecutors.  However, AFC and other advocates will remain vigilant to ensure that abuses do not occur.

The bill has been sent to Gov. Pat Quinn who will likely sign the bill into law.  According to the Center for HIV Law and Policy, 32 states and two U.S. territories have HIV criminal transmission laws.  The bill strikes an apprehensive compromise between HIV advocates and law enforcement. While the bill is an improvement, it still contains problematic sections.  AFC will continue to monitor the law once it is enacted, and look for opportunities to repeal it altogether.

Denmark: Safer sex without a condom (editorial)

Below is an excellent editorial by Henriette Laursen, director of AIDS-Fondet, and Susan Cowan, staff specialist at Statens Serum Institut, on the current state of HIV science and how it should impact the Danish Government’s deliberations on whether or not to enact a new HIV-specific criminal statute following the previous statute’s suspension in February 2011.

Henriette tells me that the Government’s deliberations are still ongoing and that there will be no decision before the end of summer. But, she notes, “I guess the longer [Denmark is] without a penal code the easier [it is] to prove the country can live without [an HIV-specific law].”

The original Danish article, published in Information on 12th June 2012, can be found here.  This is my English translation (with the assistance of Google translate) which might not be completely faithful to the Danish.  Nevertheless, the ideas and arguments in the editorial are unchanged from the original.

Safer sex without a condom

The Ministry of Justice’s proposal to revise the Penal Code on HIV, may have the consequence that those who can infect cannot be punished, and those who may be punished, cannot infect

In medical records, you can now find advice from infectious disease physicians to HIV patients which say thinks like: “Has been informed that (s)he has a sustained fully suppressed HIV and can drop the condom.”

‘Safer sex’ for a person living with HIV today is not just sex with a condom, but also sex while under medical HIV treatment.

Medical HIV treatment today has the status of an adequate protection against infection in line with – or even more effective – than condom use. It is therefore completely by the book for the doctor to inform their successfully treated patients that they can drop the condom – in order to have children the old fashioned way, for example.

This knowledge, however, is not so well known outside of the medical field. Not least in the context of both the past and the present Government’s deliberations on what to do with the Danish HIV-criminal provision which is currently suspended because HIV is no longer a life threatening illness.

As an alternative to the former penal provision working group under the Ministry of Justice  suggested that HIV-infected persons who know their HIV status should be punished by up to two years in prison for having sex without a condom. This is completely without regard to whether the patient could possibly infect anyone due to the effects of medication.

To date, fifteen years after the introduction of effective HIV treatment, not a single case has been documented  where a well-treated person with HIV has infected another person through sex.

Infection comes rather from HIV-infected persons who do not yet know their HIV status and therefore not in medical care. Due to their lack of knowledge that they are HIV-positive, for good reason these people are not penalized.

The infectious cannot be punished
If implemented the working draft statute broadly means that those who can infect cannot be punished, and those who may be punished, cannot infect.

The Working Group did not wish to limit the provision to people with HIV who actually are infectious, because it would be too difficult for the prosecution to prove this during a trial. [Editor’s note: this is exactly the same weak argument that the Manitoba and Ontario Crown Prosecutors used in the Canadian Supreme Court.]

The Working Group evidently believes that that the same difficulties are not present when it comes to prove whether or not a condom was used.

Strange approach
It seems quite odd that it would be easier to prove what happened between two people in a bedroom than through medical records to determine whether the person with HIV at the time was under HIV treatment, where outcomes from regular blood tests can show that HIV is reduced to a degree which means that they cannot infect.

We would ask that future legislation is based on current knowledge about HIV. Since the implementation of the previous HIV criminal law there have been so many advances in the field that it no longer makes sense to criminalise HIV transmission.

HIV should now be equated with other serious infectious diseases and not have its own special rule in criminal law. HIV should instead preferably be fully addressed in the health system.

Harmful criminalisation
It should also be taken into consideration that the criminalisation of HIV transmission in our opinion does not help when it comes to limiting the spread of HIV. On the contrary, the fear of punishment means people hide and are not tested for HIV. It is not only harmful to the individual, who is at risk of illness and even death, but also for prevention.

If Government and Parliament, however, focused on work to clear the prejudice and stigmatisation of people living with HIV out of the way by implementing a decriminalisation of HIV, it would be of great benefit for prevention.

The time has come to repeal the HIV provision in the Penal Code. Medical advances mean that HIV is no longer the same kind of illness that it was 10 and 20 years ago.

Some people may be reassured if a small part of the Criminal Code is preserved to allow prosecutions for very egregious cases when a person knows their HIV status, is not on medical treatment, and in a reckless manner repeatedly and knowingly exposes others to infection. But to introduce the provision as proposed is not only pointless, but downright harmful for HIV control in Denmark.

US: New York Court of Appeals Says HIV+ Man’s Saliva Is Not a “Dangerous Instrument” (Press Release)

New York Court of Appeals Says HIV+ Man’s Saliva Is Not a “Dangerous Instrument”

Punishing People on the Basis of Physical Attributes Would Create “Sliding Scale of Criminal Liability”

New York, June 7, 2012 – Legal and public health experts are applauding the New York Court of Appeals, decision today to vacate the 2006 conviction and sentencing of David Plunkett, an HIV-positive man, for aggravated assault for biting a police officer. The state prosecutor argued that Plunkett had used his saliva as a “dangerous instrument” when he allegedly bit a police officer during an altercation involving several police who were restraining him following an outburst in a medical facility. Plunkett currently is serving a 10-year prison term in Sing Sing.

New York’s highest court vacated Mr. Plunkett’s conviction and dismissed the aggravated assault complaint against him on the basis that his saliva, or any body fluid or part, cannot be treated as “dangerous instruments” and a basis for charging someone with aggravated assault under New York law.

In a 1999 decision, The NY Court of Appeals had ruled that a person’s teeth cannot be characterized as a dangerous weapon, or “instruments” under the terms of the law, as an element of an assuault charge.  The prosecutor and lower court attempted to get around this by stating that the “dangerous instrument” in the indictment was in fact the defendant’s saliva, which was “readily capable of causing death or other serious physical injury.”

In its ruling, the Court “sought not simply to reach a textually and historically correct understanding of what the Legislature meant” the law to include, but also to avoid the injustices that “would result if criminal liability varied with the corporeal attributes of assailants and their victims.”  This interpretation would make an individual’s health, disability or even physical characteristics relevant to a determination of the ability to do harm, resulting in a “sliding scale of criminal liability,” the Court concluded.

The ruling is particularly important because it makes clear that a person’s health status, disability or other physical attributes should never be the basis for increased charges or sentencing.

Medical and public health experts long-ago dismissed the risk of HIV transmission through spitting or biting as near-zero, too small even to be measured.

“HIV is not a particularly easy virus to transmit, and it is virtually impossible for it to be transmitted through biting,” explained Terrance Moore,Director, Policy and Health Equity at the National Alliance of State and Territorial AIDS Directors (NASTAD). “However, it is important that we realize that treating HIV or any disease as something that should be the basis of criminal charges, absent actual harm, is terrible for public health efforts. The Court’s implicit recognition of the injustice of basing liability on health status is a huge boon for our work.”

The Plunkett case is one of hundreds across the country where HIV-positive individuals face criminal charges and long sentences on the basis of their HIV status for no-risk conduct and consensual adult sex. Members of the Positive Justice Project, a national group challenging the medical, legal and ethical support for such laws, object to the gross scientific mischaracterizations reflected in HIV-specific criminal laws and prosecutions as “flying in the face of national efforts to get people with HIV tested and into treatment.”

“The decision has important implications for cases where people with HIV essentially are being charged and imprisoned on the basis of their health status rather than any intent to do harm,” said Catherine Hanssens, Executive Director of the Center for HIV Law and Policy (CHLP). “The Court of Appeals has gone beyond the issue of transmission risk to say that relying on disability or health status at all is an unfounded and unjust application of aggravated assault statutes.”

Dr. Jeff Birnbaum, Executive Director of the Health and Education Alternatives for Teens (HEAT) Program and the Family, Adolescent and Children’s Experience at SUNY (FACES) Network added, “I have to battle the type of stigma reflected in the prosecutor’s point of view all the time.  I treat young people who are being told on one hand that HIV is something they can manage, that it doesn’t make them a pariah, and on the other that their spit and blood are lethal weapons and that they are dangerous to be around. The prosecutors bringing these cases make my job so much harder. Today’s decision is really good news.”

Dozens of U.S states and territories have laws that criminalize HIV non-disclosure and “exposure,” such as through spitting or biting. Sentences imposed on people convicted of HIV-specific offenses have ranged as high as 50 years, with many getting decades-long sentences despite lack of evidence that HIV exposure, let alone transmission, even occurred. A growing number of defendants are also being required to register as sex offenders.

In New York, prosecutors have used the general criminal law to pursue people with HIV charged with HIV transmission or exposure, resulting in long prison terms despite a lack of proof that the individual charged even was the source of a partner’s infection, and even when no transmission occurs.

David Plunkett was represented by Audrey Baron Dunning. Lambda Legal submitted an amicus brief joined by the the American Academy of HIV Medicine, the Association of Nurses in AIDS Care, the Center for HIV Law and Policy, and the HIV Medical Association

###

The Positive Justice Project (PJP) is the first coordinated national effort to address HIV criminalization in the United States, and is coordinated by the Center for HIV Law and Policy. For more information on PJP and HIV criminalization, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.

HIV non-disclosure and Canadian criminal law (Positive Lite, 2012)

Positive Lite editor Bob Leahy talks to Edwin J Bernard, co-ordinator of the HIV Justice Network, about HIV non-disclosure and the criminal law, particularly as it relates to the Canadian context where non-disclosure of known HIV-positive status prior to sex that may lead to a ‘significant risk’ of HIV transmission is considered aggravated sexual assault. The interview took place in Toronto, in May 2012, prior to the Supreme Court of Canada’s decision on the issue.

Greece: Matthew Weait on the moral panic over the mass arrest of female sex workers with HIV

Matthew Weait, Professor of Law and Policy at Birkbeck College, University of London guest blogs on Wednesday’s arrest of 17 HIV-positive women who allegedly worked illegally as sex workers.  Greek authorities are accusing them of intentionally causing serious bodily harm. 

The arrest in Athens of 17 female sex workers living with HIV this week is outrageous on many levels. It is not that a significant number of them have had their right to respect for private life violated (12 had their photographs published on a police website), nor that there is uncertainty as to whether the women concerned knew their HIV status, nor that the women were arrested after a screening process by the Greek Centre for Disease Control (how voluntary was that, I wonder?), nor that they have been charged with intentionally causing grievous bodily harm (a charge almost impossible to prove, and on the facts arising simply from having unprotected sex with clients – according to news reports it is unclear whether any clients have actually been infected as a result of sex with the women concerned). All these things are bad enough, but what is really appalling is the way in which it is the women who have been identified as the legitimate locus of control and the subject of punitive state response.

It is appalling, but it is entirely to be expected. There is a long and ignoble tradition of locating the source of STIs in women in general, and female sex workers in particular. In the context of HIV criminalization this tradition has reached a new peak (or, perhaps better, a new trough). Put simply, HIV criminalization has compounded, and added a new and frightening dimension to, the longstanding idea that female sex workers are a source of pollution threatening the cleanliness of men. It is not just that by identifying them as the risk and the cause of any harm men may suffer, the men concerned (and men in general) are able to divert attention from their own responsibility (though this is important), it is that criminalization has provided an opportunity, in this context, to reinforce the idea that women are inherently dirty, that HIV is dirty, and that cleansing (what a frightening word that is) through punishment, containment and deportation (the women in Athens were foreign nationals) is a reasonable and justifiable response.

Of this logic we should be very afraid. The elimination of dirt at a political level has found expression, at its most extreme, in the slaughter of the Jews by the Nazis, in the apartheid regime of South Africa, in eugenic science and rules relating to miscegenation. It is evident in any attempt by a society to maintain its ‘purity’ by imposing border controls that require would-be immigrants to undergo tests that filter out the sick and unhealthy.

At an individual level, the elimination or exclusion of dirt – or rather the practices, attitudes and response mechanisms that attempt to achieve this (prosecution, imprisonment, deportation) mirror a wider political project in which the HIV positive body is punished, marginalised and devalued because it represents everything that is feared in post-modernity. The HIV positive body is a paradigm site for repressive legal and political response because of its capacity to reproduce itself in the body of those for whom it represents a threat to physical and ontological security, and because that reproduction occurs – and can only occur – through the merging of bodies via the co-mingling of their ‘inside’. Elizabeth Grosz, an Australian feminist theorist has put this better than anyone else when she explains that:

Body fluids attest to the permeability of the body, its necessary dependence on an outside, its liability to collapse into this outside (this is what death implies), to the perilous divisions between the body’s inside and its outside. They affront a subject’s aspiration toward autonomy and self-identity. They attest to a certain irreducible ‘dirt’ or ‘disgust’, a horror of the unknown or the unspecifiable that permeates, lingers, and at times leaks out of the body, a testimony to the fraudulence or impossibility of the ‘clean’ and ‘proper’. (Grosz, 1994: 193-4)

For Grosz, it is women’s bodies, their unstable and destabilizing corporeality, that serve both to affirm men’s belief in their own inviolability and, thus, the bounded body (i.e. male bodies) as the normal, universal and legitimate form of subjectivity. The seminal flows that emit from male bodies, reduced to a by-product of sexual pleasure rather than conceived as a manifestation of immanent materiality, and as something that is directed, linear and non-reciprocal, enables men to sustain the fantasy of the closed body and of the possibility of control over it. The socio-cultural and psychological dimension of Mackinnon’s (in)famous assertion about the power necessarily instantiated in heterosexual relations (‘Man fucks woman: subject verb object’ (Mackinnon, 1982: 541), this fantasy is a prerequisite for the maintenance of masculinity, and of the mastery – over women, over nature – that masculinity enables, or which is its prerogative.

To receive flow, or to be in position where there is a risk of flow in the other direction, is to be identified with the feminine (whether as woman, or as passive homosexual) and to lose the phallic advantage; to acknowledge the essential materiality of the body, that its flows are not merely by-products of the body but constitutive of it, is an admission that strikes at the heart of masculinity, at the security which is its privilege, and at the legitimacy of the hierarchised and gendered socio-economic order upon which its privileged status depends. Understood in these terms, it is unsurprising that it is women’s bodies (despite the relatively low risk of female to male sexual transmission) that are – within the discourse that frames the heterosexual HIV epidemic– characterised as the source of infection. As Grosz explains, this discourse is one that makes

… women, in line with the conventions and practices associated with contraceptive procedures, the guardians of the sexual fluids of both men and women. Men seem to refuse to believe that their body fluids are the ‘contaminants’. It must be women who are the contaminants. Yet, paradoxically, the distinction between a ‘clean’ woman and an ‘unclean’ one does not come from any presumption about the inherent polluting properties of the self-enclosure of female sexuality, as one might presume, but is a function of the quantity, and to a lesser extent the quality, of the men she has already been with. So she is in fact regarded as a kind of sponge or conduit of other men’s ‘dirt’. (Grosz, 1994: 197)

Given Grosz’s analysis it is hardly unsurprising that the Centre for Disease Control in Greece had 1500 calls from concerned men once the story about the brothels broke. Far from accepting any responsibility they might have for having sex which carried the risk of STI and HIV infection, it was entirely to be expected that their concern was whether the women might have infected them, and that the legal response was to round up the women. Patriarchy is, after all, a Greek word.

The response of the Greek health Minister, Andreas Leverdos, prompted in part by a massive rise in HIV infections in Greece in recent months (954 new infections were reported in 2011, a 57 percent increase from the previous year), and also – surely – by the political value in deporting non-nationals at a time when Greece is in economic meltdown, was to suggest criminalizing unprotected sex in brothels. He is reported as saying,

 Let’s make this a crime. It’s not all the fault of the illegally procured woman, it’s 50 percent her fault and 50 percent that of the client, perhaps more because he is paying the money.

On the face of it this response suggests some recognition of shared responsibility. However, it is a pipe-dream – I suggest – to imagine that doing this (even if it were politically viable, which I doubt) would have the effect of eradicating the deeply entrenched view that female sex workers are to blame for their clients ills; nor is criminalization of sexual behaviour that carries the risk of HIV infection a productive or constructive answer to anything. It would simply perpetuate the idea that punitive laws are an appropriate response to what is properly understood as a public health issue that should be addressed through wider awareness, education and an affirmation of the importance of taking care of, and respecting, ourselves and others.

(Reposted from Matthew Weait’s own blog, ‘The Times That Belong To Us’ with kind permission. You can also follow Matthew on Twitter @ProfWetpaint)

US: Positive Justice Project Watching NY Court of Appeals on “Deadly Saliva” Case

Today, the New York Court of Appeals will hear the case of David Plunkett who was convicted for aggravated assault after allegedly biting a police officer during his 2006 arrest.  The case rests on whether the saliva of someone with HIV can be considered a “dangerous instrument” under the law.

Lambda Legal filed a court brief earlier this week arguing that upholding Plunkett’s conviction would further stigmatise people living with HIV.

“Clearly, the trial court here erroneously believed that HIV could be transmitted by saliva,” the Lambda Legal brief reads. (Read more about the case and the entire amicus brief at Lambda Legal’s blog.)

The Positive Justice Project today released a strongly worded press release highlighting that “it’s time that courts rely on science rather than decades-old notions of HIV.”  The entire release is below.

Let’s hope science wins out over stigma this time around.

New York, April 26, 2012 – Legal and public health experts are speaking out as the New York Court of Appeals, the highest court in New York, today reviews a case concerning the 2006 conviction of David Plunkett, an HIV-positive man, for aggravated assault for biting a police officer. The state prosecutor argued that Plunkett used his saliva as a “dangerous instrument” when he allegedly bit a police officer during an altercation, for which he is serving a 10-year prison term.

Medical and public health experts long-ago dismissed the risk of HIV transmission through spitting or biting as near-zero, too small even to be measured.

“It is virtually impossible for HIV to be transmitted through biting,” explained Oscar Mairena, Senior Associate for Viral Hepatitis / Policy and Legislative Affairs at the National Alliance of State and Territorial AIDS Directors (NASTAD). “According to the Centers for Disease Control and Prevention (CDC), in order for there to exist even a remote possibility of transmission from a bite, there would need to be severe trauma with extensive tissue tearing and damage. What occurred in this case – and in the vast majority of HIV criminal cases that involve biting – bears no resemblance to that description.”

The Plunkett case is one of hundreds across the country where HIV-positive individuals face criminal charges and long sentences on the basis of their HIV status for no-risk conduct and consensual adult sex. Members of the Positive Justice Project, a national group challenging the medical, legal and ethical support for such laws, object to the gross scientific mischaracterizations reflected in HIV-specific criminal laws and prosecutions as “flying in the face of national efforts to get people with HIV tested and into treatment.”

“This type of case reflects widespread ignorance about the routes and actual risks of HIV transmission,” said Beirne Roose-Snyder, Managing Attorney at the Center for HIV Law and Policy (CHLP). “Persistent misinformation about how HIV is transmitted, and what it means to have HIV in 2012, is a major cause of these laws and can create a major barrier to convincing people that it is safe and necessary to get tested.

Dr. Jeff Birnbaum, Program Director of the Health and Education Alternatives for Teens (HEAT) Program and the Family, Adolescent and Children’s Experience at SUNY (FACES) Network added, “I have to battle this type of stigma with the young people I treat all the time. This kind of case just makes my job harder. It’s time that courts rely on science rather than decades-old notions of HIV.”
 
Dozens of U.S states and territories have laws that criminalize HIV non-disclosure and “exposure,” such as through spitting or biting. Sentences imposed on people convicted of HIV-specific offenses have ranged as high as 50 years, with many getting decades-long sentences despite lack of evidence that HIV exposure, let alone transmission, even occurred. A growing number of defendants are also being required to register as sex offenders.  

In New York, prosecutors have used the general criminal law to pursue people with HIV charged with HIV transmission or exposure, resulting in long prison terms despite a lack of proof that the individual charged even was the source of a partner’s infection. 

“Each time there is a case like this that relies on ignorance about the nature of HIV, the public gets the message that people with HIV are highly infectious and out to hurt people,” said Michelle Lopez, community advocate and a woman living with HIV.  “That message is cruel and counter-productive.”

Susan Rodriguez, also HIV-positive and Founding Director of Sisterhood Mobilized for AIDS/HIV Research & Treatment (SMART), an educational and advocacy organization for women and youth living with HIV, added, “Women and young people living with HIV pass through these doors all the time with their heads hanging down, afraid of what people will think of them because they’re positive.  It can take a long time for some to believe that they have the right to hold their heads high, because they have a virus, not a character defect or a loaded gun. Telling people to get tested on one hand, and then turning around and treating them like felons?  Do they really think that telling people who test positive that they are dangerous will encourage others to get tested, let alone to disclose their status to someone who can get them thrown in jail?  Be real.”

Sweden: Latest HIV non-disclosure prosecution highlights why Sweden’s “nanny state” is getting it so wrong

Last week a 31-year-old woman, previously found guilty of attempted aggravated assault for having unprotected sex with her male partner without disclosing her HIV-positive status, was sentenced by the Falun District Court to 18 months in prison.  The man has not tested HIV-positive.

An editorial by the ubiquitous Professor Matthew Weait in today’s Newsmill (‘Rädsla för det orena bakom Sveriges hårda hiv-lagar’ / ‘Fear of the unclean behind Sweden’s harsh HIV laws’) critiques such prosecutions as symptomatic of Sweden’s “nanny state” approach to the lives of its citizens.

So far, of the eleven comments, only one appears to agree with Matthew’s brilliant but challenging assessment. Fortunately, it is not necessarily the general public in Sweden that needs to be persuaded to change course, but Sweden’s politicians.  In this regard, the editorial may be helpful to the two year campaign by RFSU (the Swedish Association for Sexuality Education), HIV-Sweden, and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) to raise awareness and advocate against overly draconian HIV criminalisation in Sweden.

Here’s the original English version adapted from Matthew’s blog.

There is a horror film from 1992 called “The Hand that Rocks the Cradle”. The plot centres on the efforts of a vengeful nanny to destroy the life of a woman who the nanny blames for her own husband’s suicide and the miscarriage she subsequently suffers. The title is a good one for the film because it suggests security and safety when the opposite is in fact the case. There is nothing more disturbing than discovering that the person in whom you have put your trust is in fact the source of danger and harm to the thing you hold most dear.

Sweden has rocked its children in a cradle handed down through the generations for over a century, carved from the warm, soft wood of social democracy. And, for most of the children, the cradle is a very safe place. Indeed, many have fallen asleep as she rocks them and find the constant motion so comforting that there is little desire to wake up (which suits nanny just fine). For some other children though, the story is very different. Beware those who refuse to believe all of the stories nanny tells them, or the children behaving in such a way that she thinks will set a bad example. It’s not that she wants to be cruel, but she knows what’s in their best interests. She has little, if any, tolerance for those who jeopardise all the work she has done in raising the good, obedient, children, and she will take almost any action necessary to show the bad ones the error of their ways and bring them into line. Tough love: that’s nanny’s motto.

Some readers may find this extended metaphor shocking. It is meant to be. I, like many of my contemporaries in countries with less welfare-oriented, and stronger liberal-conservative, political traditions have always thought of Sweden and its neighbours as some kind of Nirvana – a promised land in which no-one will ever be too rich, and no-one too poor; where the contract between state and citizen assures security and support for all, irrespective of the personal misfortunes and disadvantages people may experience.

My recent research into Sweden’s response to people living with HIV has demonstrated how this image – accurate in many respects – is only part of the story. Not only has Sweden detained more than 100 people under its communicable disease legislation since the epidemic began (and been held, in one case, to have violated the European Convention on Human Rights as a result), it criminalises more people per 1000 living with HIV (PLHIV) than any other country in Europe. It criminalises them not only for deliberate transmission, but for non-deliberate transmission and for exposure (where HIV is not in fact transmitted). It criminalises only those who know their HIV status, despite the fact that the source of most new infections is people who are undiagnosed, and ignores the fact that PLHIV on effective treatment and with an undetectable viral load present practically no risk of onward transmission to a partner during sex. It criminalises these people despite the fact that HIV is a public health issue, despite the fact that there exists no evidence that criminalisation has any public health benefits, and despite the fact that the sensationalist headlines which accompany stories about HIV cases contribute to and reinforce the stigmatisation of all PLHIV.

It is my strong belief is that Sweden’s coercive and punitive response to HIV has its source precisely – and paradoxically – in values that have become so embedded in the psyche of the general population over the past century that anything, or anyone, that threatens them is treated as a dangerous contaminant to be dealt with accordingly. Just as with its approach to sex work (even this term is disliked), which treats all workers as victims and all men as deviant criminals, and drug use (where harm reduction – despite its efficacy – is distrusted because it suggests tolerance of something essentially dirty and dangerous), HIV is criminalised because it threatens, at a very fundamental level, what being Swedish means. HIV is not clean. HIV is not healthy. HIV is not normal. For as long as HIV can be contained among men who have sex with men, drug users and migrants – and (critically) be seen to be contained there by everyone who is not a member of these groups – the Swedish self-image of a country committed to enlightened, progressive values can be sustained. And because this is so important, any measures – however repressive, illogical or misguided – are acceptable.

Since March 2012, Sweden has a new Ambassador to the Kingdom of Swaziland, Ulla Andrén. On presenting her letters of credence to the King, Ambassador Andrén emphasised “the importance of a continued effort to work against the HIV/AIDS pandemic” in that country. Swaziland has the highest HIV prevalence in the world, with more than one in four people living with virus (some 200,000 people). Given the passionate commitment it has demonstrated to punishing PLHIV domestically, and its belief in the value of a punitive response, it would seem only sensible that Sweden should suggest that Swaziland adopts its. Except of course it shouldn’t do this, and nor would it. But it’s a serious point though. If it would be wrong to recommend the criminalisation of HIV in Swaziland, where HIV remains, for many, a dangerous and deadly disease, then why is it OK to criminalise it at home, where people who are diagnosed can lead long and otherwise healthy lives?

We all understand why the children like sleeping in nanny Sweden’s cradle. But it might be interesting, and liberating, for them to wake up and test her patience a little …

Austria: Man accused of criminal HIV transmission fights “unconstitutional” forced blood test

A man in Austria is taking a case to the Constitutional Court that challenges the forcible testing of blood for HIV (as well as for use in phylogenetic analysis) that was legalised on 1 January 2012 through an amendment of the Criminal Procedure Code by the Prevention of Terrorism Act 2011.  He is being supported by Rechtskomitee LAMBDA, whose president, Dr. Helmut Graupner, is also his defence counsel.

Full details of the case, and the problematic application of this law, from the Rechtskomitee LAMBDA press release issued today are included in full below (English version is slightly modified from the original release; German is the original.)

From 1 January 2012: Forced Hiv-Testing: Rechtskomitee LAMBDA supports case in the Constitutional Court

The Prevention of Terrorism Act 2011 also amended the Criminal Procedure Code. It makes forcible HIV-testing legal as of 1 January 2012, despite the fact that the Constitution prohibits taking blood by force. A case has already been brought to the Constitutional Court.

The Prevention of Terrorism Act 2011, passed by federal parliament in October 2011, legalizes taking blood by force in order to prove the misdemeanor of Endangering Human Beings by Transmittable Diseases (§ 178 Criminal Code). Up to now forcible blood taking (in the case of not intoxicated defendants) had been restricted to sexual felonies or other felonies incurring a maximum penalty of five years.

Since 1 January 2012 this changed, despite the fact that the Constitutional Court prohibits forcible blood withdrawals, as no one may be forced to supply his body as evidence against him. The first case challenging this new power of the criminal police has already been taken to the Constitutional Court.

The applicant, who has no criminal record, is HIV-positive and asks the Constitutional Court to strike down the amendment. The state prosecutor has started proceedings against him under  § 178 CC after another HIV-positive man had accused him of infecting him with HIV. Indeed the two men had sex with each other years ago, but in accordance with the safer sex rules propagated by the Ministry of Health and the AIDS Service organisations (oral sex without ejaculation into the mouth).

Blackmailed and reported to the police

The accuser, who has a massive criminal record of violent, drug and property offences, reported the defendant to the police years after the sexual contact and only after the man refused to fulfil his considerable financial demands. In addition the accuser admitted during his interrogation that he had unprotected sex with others, and he had searched for casual sex (“sexdates”) in the internet displaying in his profile the information “Safer Sex: Never”. Even more so the man, according to his own depositions, is addicted to heroin and thus had been exposed also to other ways of transmission than the sexual one.

The case against the accuser (for aggravated blackmail) has been dropped immediately after the interrogation of both men due to “conflicting depositions”. Not so the case against the defendant for endangering by transmittable diseases (which offence is fulfilled just by engaging in unsafe sex without the necessity of causing infection). Also in regard to this offence there were “conflicting depositions” but the prosecutor wanted a blood test (for phylogenetic analysis).

Potential for conviction of innocents

A phylogenetic analysis however cannot prove an infection. And phylogenetic analyses bear the risk of false results and misinterpretation at the expense of a defendant. There are no standards (guidelines) so far for such analyses in forensic context and its results unfortunately again and again are misunderstood and misinterpreted by the courts. UNAIDS and the EU-Fundamental Rights Agency for years have been highlighting this.

So the man did not agree to blood withdrawal from him as he fears, because he is innocent, to be wrongfully convicted on the basis of such a blood test. Since 1 January he now is facing the danger of forced blood taking at any time. Therefore he has addressed the Constitutional Court.
  
“It is incredible that the governing coalition passed this unconstitutional law,” says president of Rechtskomitee LAMBDA (RKL) and defence counsel of the man, Dr. Helmut Graupner, “As too often we again have to hope for the Constitutional Court”.

Seit 1.1.2012: Zwangs-Hiv-Tests: Rechtskomitee LAMBDA (RKL) unterstützt Antrag an den Verfassungsgerichtshof

Das Terrorismuspräventionsgesetz bringt auch eine Novelle der Strafprozessordnung. Seit 1.1.2012 sind gewaltsame Blutabnahmen bei Verdacht einer Ansteckung mit Hiv zulässig, obwohl die Verfassung zwangsweise Blutabnahmen verbietet. Eine Beschwerde liegt bereits beim Verfassungsgerichtshof.

Mit dem im Oktober 2011 verabschiedeten Terrorismuspräventionsgesetz wurden Zwangsblutabnahmen bei Verdacht des Vergehens der Gefährdung von Menschen durch übertragbare Krankheiten (§ 178 Strafgesetzbuch) erlaubt. Bisher waren zwangsweise Blutabnahmen (bei nicht berauschten TäterInnen) nur bei Verdacht auf ein Sexualverbrechen oder auf ein (anderes) Verbrechen zulässig, das mit mehr als 5 Jahren Freiheitsstrafe bedroht ist.

Das ist seit 1. Jänner anders, obwohl der Verfassungsgerichtshof zwangsweise Blutabnahmen verbietet, weil niemand gezwungen werden darf, seinen Körper als Beweismittel gegen sich selbst zur Verfügung zu stellen. Die erste Beschwerde gegen die neue Befugnis der Kriminalpolizei liegt bereits beim Verfassungsgerichthof.

Der unbescholtene Antragsteller ist Hiv-positiv und beantragt die Aufhebung der Gesetzesnovelle. Die Staatsanwaltschaft (StA) hat gegen ihn ein Ermittlungsverfahren wegen des Verdachts gem. § 178 StGB eingeleitet, weil ihn ein anderer Hiv-positiver Mann beschuldigt, ihn mit Hiv angesteckt zu haben. Tatsächlich hatte der Mann mit diesem anderen Mann vor Jahren einvernehmlichen sexuellen Kontakt, jedoch entsprechend den vom Gesundheitsministerium und den Aids-Hilfen propagierten Safer Sex Regeln, also mit Sexualpraktiken, bei denen eine Ansteckung nicht möglich ist (Oralverkehr ohne Ejakulation in den Mund).

Erpresst und angezeigt

Der mehrfach wegen Gewalt-, Suchtgift- und Vermögensdelikten vorbestrafte Anschuldiger hat die Anzeige, in der er ungeschützten passiven Analverkehr behauptete, erst Jahre nach dem sexuellen Kontakt erstattet und erst nachdem der Beschuldigte nicht bereit war, seine erheblichen finanziellen Forderungen zu erfüllen. Zudem hat er selbst in seiner Einvernahme angegeben, anderweitig ungeschützte sexuelle Kontakte gehabt zu haben und hatte er im Internet flüchtige sexuelle Kontakte („Sexdates“) gesucht mit einem Profil, auf dem angegeben war: „Safer Sex: Niemals“.  Darüber hinaus ist dieser Mann nach seinen eigenen Angaben heroinsüchtig, und war daher, außer dem sexuellen noch anderen Übertragungswegen für eine Hiv-Infektion ausgesetzt.

Das gegen den Anschuldiger (wegen des Verdachts der schweren Erpressung) eingeleitete Strafverfahren wurde „wegen der widerstreitenden Aussagen“ sogleich nach Einvernahme der beiden Männer eingestellt. Nicht jedoch das Verfahren gegen den Beschuldigten wegen des Verdachts der Gefährdung durch übertragbare Krankheiten (wofür bereits unsafer Sex ausreicht, ohne dass es zu einer Ansteckung gekommen ist). Auch hier bestanden widerstreitende Aussagen, jedoch begehrte der Staatsanwalt eine Blutuntersuchung (phylogenetische Untersuchung).

Gefahr der Verurteilung Unschuldiger

Eine phylogenetische Untersuchung kann aber eine Ansteckung nicht beweisen. Und phylogenetische Untersuchungen bergen das Risiko falscher Ergebnisse und von Fehlinterpretationen zu Lasten des Beschuldigten Es gibt (noch) keine Standards (Richtlinien) für die Durchführung dieser Analysen zu gerichtlichen Zwecken und ihre Ergebnisse werden von Gerichten leider immer wieder missverstanden und fehlinterpretiert. Darauf weisen UNAIDS und die EU-Grundrechteagentur seit Jahren hin.

Der Mann hat daher einer Blutabnahme nicht zugestimmt, weil er befürchten muss, auf Grund der Testergebnisse unschuldig verurteilt zu werden. Seit 1. Jänner muss er nun jederzeit die gewaltsame Abnahme einer Blutprobe fürchten und hat sich daher an den Verfassungsgerichtshof gewandt.

„Es ist unglaublich, dass die Regierungsparteien, gegen die Opposition, diese verfassungswidrige Regelung beschlossen haben“, sagt der Präsident des RKL und Rechtsanwalt des Antragstellers Dr. Helmut Graupner, „Es bleibt, wie so oft, die Hoffnung auf den Verfassungsgerichtshof“.

Guyana’s Special Select Committee of Parliament on the Criminal Responsibility of HIV Infected Individuals has chosen not to create an HIV-specific criminal law

UN Team on AIDS lauds Guyana 09-Sept-2011 – says ‘Guyana gets it right’ by not criminalising HIV GUYANA’S Special Select Committee of Parliament on the Criminal Responsibility of HIV Infected Individuals has chosen not to make the transmission of HIV a criminal act.The Joint United Nations Team on AIDS, coordinated by the United Nations Joint Programme on HIV/AIDS (UNAIDS) congratulates the Parliamentary Committee for its mature and measured decision.

This latest parliamentary decision clears the way for Guyana’s HIV response to continue proceeding in a rational and productive direction.

(The full Report of the Special Select Committee to the Guyana Parliament are available online and the Speech of Honourable Dr. Leslie Ramsammy, Minister of Health quoted at: https://www.kaieteurnewsonline.com/2011/09/20/franklin-does-about-face-on-motion-to-criminalize-willful-transmission-of-hivaids/