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/ 

Tell your story – how are you impacted by HIV criminalisation?

Understanding the unintended impacts of the criminalisation of HIV exposure or transmission – way beyond the relatively few individuals who are accused, arrested and/or prosecuted – can play a crucial part in advocating against such laws and prosecutions.

Over the next few months, there are going to be multiple opportunities to highlight issues such as:

  • Creating fear and confusion about relying on disclosure to prevent HIV risk, and when disclosure is legally necessary
  • Making it harder for people living with HIV who are having problems maintaining safer sex to talk with healthcare workers due to fear of prosecution
  • Increasing HIV-related stigma
  • Creating a false sense that HIV is someone else’s problem, rather than a shared responsibility
  • Providing an additional disincentive for people to learn their HIV status

These opportunities will arise via the Global Commission on HIV and Law’s High Income Country Dialogue that will take place in Oakland, California on 16-17 September (click here for more details);  the UNAIDS Programme Coordinating Board meeting focusing on HIV and Enabling Legal Environments that will take place in Geneva, Switzerland on 13-15 December; and through an ongoing project by IPPF, Behind Bars, that highlights a wide range of personal testimonies about the impact of HIV criminalisation.

I’m hoping that blog readers will help me collate personal testimonies about the impact of HIV criminalisation on their own lives. You don’t have to be an HIV professional or have been involved in a case to have been impacted (although such testimonies are very welcome).

As the example I’m about to show you illustrates, you can simply live in fear of the law because you are living with HIV.

I’m more than happy to receive testimonies from all over the world, but right now – because I am in the middle of producing a report about the impact of HIV criminalisation in Europe for the Global Commission on HIV and the Law – I’m especially looking for testimonies from Europe.

If you have a story to share, you can either paste it into the comment box or send it to me at yourstory(at)edwinjbernard.com.  Some stories that I receive may be included in my Global Commission submission, and included in IPPF’s Behind Bars collection, and all will be highlighted on my blog. Submissions can be anonymous (but I will require some evidence of authenticity), and if you do use your real name, please indicate whether it can be used in full or not.

Here’s Jonas’s story (not his real name) from Norway.  The use of Paragraph 155 (known as the ‘HIV Paragraph’) is currently being evaluated by a Government committee’s thorough investigation into the appropriateness of HIV criminalisation. The committee should produce its recommendations by Spring 2012, although there are no guarantees that a version of this law will not remain on the books and continue to be enforced when their deliberations end.

Paragraph 155 of the Norwegian Penal Code, an infectious-disease law enacted in 1902, essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status and consents, and irregardless of viral load or a desire by a couple to conceive.  Both ‘willful’ and ‘negligent’ exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for ‘willful’ exposure or transmission and three years for ‘negligent’ exposure or transmission.

Paragraph 155 – and a story from a partially unlived life

In my teens I turned off my sexuality. Even as my hormones were reaching boiling point, I managed to shut down. I felt that my desires were wrong, and I am a strong-minded person. In my twenties, I told my family and friends that I was gay. I began to have sex carefully, but I was never in any relationship.

When I reached 30, and after some therapy, I began to feel ready to try enter into a relationship. In January 2000 I took the HIV test, together with my best friend, since it was the “millennium change.” My test turned out to be HIV-positive, and the shock was devastating. I was very far from having a wild sex life – it was just very bad luck. Like many other HIV-positive persons, I later came to understand what my doctor told me following diagnosis:  “You are going to be fine. HIV is no longer a death sentence.” The words were a great comfort. I still had so much unlived life in me.

Life with HIV was difficult at first, but slowly I came to accept the new situation, the same way I had earlier come to accept my sexual orientation. But because of Article 155 must I, as a virile, and still fairly young man, now live like a monk – an asexual monk? What kind of life will that be? Would I be able to live like that?

Last time I had sex was some months ago. I was dating a nice guy I was attracted to, and we were at his place. Sweet music was playing. I lied and said I did not have the energy to have sex after my gym work out, but that I would like a massage instead. I got the massage. A very nice massage. The atmosphere got hot. I felt both excited and uneasy. He said he wanted to have sex with me. I said no. We continued with massage and kissing for a while. “Just a little?” He asked again. I gave in. We began to have sex. We got a condom and lubricant ready. Then the thought hit me hard, like a powerful wave. What if the condom bursts? It could happen, even if it is very unlikely. “Exposure to potential risk,” says the HIV Paragraph.

Although I hadn’t told him myself, I knew that he knew a guy who knows that I am HIV-positive, someone I met at a seminar for HIV-positive people some years before. But I did not know this guy well, and I share my diagnosis only with people I have known for a long time, and trust, like friends and family. What if he tells his friend about this incident? Perhaps his friend would guess who I am and say, was his name xxxx? ‘Ah yes, he has HIV, like me!’ What if he then calls the police? Reports me? What if the police comes to my home? Brings me in for interrogation, and puts me in a prison cell? What about my important meeting next week? Mum will be crushed if I go to jail. For having sex.

I pulled away. I used the oldest excuse in the book: headache. And low blood sugar. I put on my clothes and left. I never called him again. I have thought about him several times.

I will not be able to live my life without sex. I’m not a big fan of the word injustice. Nature is not fair. But Paragraph 155 criminalises me for wanting to live a full life – and that includes a sex life. Me – who has studied law just because everyone said I was always so fair and wise.

I feel like a victim, even though I often criticise the role of the victim. A victim of this discriminatory law that criminalises the sexuality of people affected by HIV. A victim of prejudice related to HIV, which few seem to bother to care about. Norwegian society likes its scapegoats. I want to remove the criminalisation of sexuality in Norway. I want a good life. In Norway. In 2011. And in the rest of the years I will live in this beautiful country.

Denmark: HIV criminalisation exports stigma, writes Justice Edwin Cameron

Denmark’s leading broadsheet newspaper, Politiken, last week published an article by Justice Edwin Cameron of the South African Constitutional Court congratulating Denmarks’ recent suspension of its HIV-specific criminal statute, and asking that it considers abolishing it altogether – otherwise it risks being emulated in low-income settings that follow the country’s example of an otherwise strong human rights record.

Justice Cameron wrote a similar article for a Norwegian newspaper in 2009 which led to a rethink of the use of Paragraph 155 (the ‘HIV paragraph’) and the establishment of an independent commission to explore the article’s revision.

I hear from my contacts in Denmark that there already some signs that the article has gained the attention of some high-level government ministers concerned about Denmark’s standing in the global HIV community.

Let’s hope it has a positive impact on Denmark’s ongoing government working group currently considering whether the only HIV-specific law in Western Europe should be revised or abolished.

The full text of Edwin Cameron’s article in English is below. The Danish original can be found here.

Debate: Denmark exports stigma
AIDS Foundation
Politiken 8th June 2011, Culture, page 6

INTERNATIONAL COMMENTARY: Danish HIV–law is in conflict with the UN
by Edwin Cameron

When South Africans think of Denmark, we see a country with the highest humanitarian standards that others look up to. I was therefore disturbed to realise recently that Denmark has one of the world’s harshest laws criminalising HIV: Penal Code Section 252, paragraph 2. This provision makes criminal anyone with a life threatening and incurable communicable disease who wilfully or negligently infects or exposes another to the risk of infection.

What is notable about the Danish law is that it includes mere exposure—which means that a person may be guilty even though there is no actual transmission. The penalty is severe—up to eight years of imprisonment. Today the law only covers people living with HIV — a vulnerable group that experiences much discrimination.

Denmark is among the world’s most generous contributors to UNAIDS, the UN agency that works to mitigate the impact of this mass worldwide epidemic. In addition, Denmark has signed the declaration on HIV and AIDS, adopted at the UN Special Session. But Denmark’s penal code is in conflict with both UNAIDS and the UN Declaration’s position.

UNAIDS has called on governments to limit criminalisation to cases where “a person knows his HIV positive status, acts with the intent to transmit HIV and actually transmits HIV’. In contrast, the Danish penal provision is precisely the kind of legislation that UNAIDS warns against.

We know that many developing countries pay attention to the more developed countries’ laws when they formulate their own. In Africa, my own continent, an increasing number of countries have adopted laws that criminalize HIV, with devastating consequences – not least for women. By maintaining its own discriminatory legislation Denmark in effect exports stigma.

But there are strong reasons why criminal laws and prosecutions are bad policy when it comes to AIDS.

1: Criminalisation is ineffective in relation to limiting the spread of HIV. In most cases the virus spreads when two people have sex, neither of them knowing that one of them has HIV. The fact that a penal provision is of no use here is a good reason to doubt whether it should remain on the statute book.

2: Criminal laws and prosecutions are poor substitutes for measures that can really control the epidemic. Experience shows us that well-considered public health programmes that offer counseling, testing and treatment are far more effective tools to prevent the spread of HIV.

3: Criminalisation does not protect women, but makes them victims. In Africa, most of those who know their HIV status are women, because most tests take place at antenatal health care sites. These laws have rightly been described as part of a ‘war on women’.

4: Many of these new laws in Africa, which are being adopted partly on the strength of Western European precedents, are extremely poorly drafted. For example, according to the ‘Model Law’ that many countries in East and West Africa have adopted, a person who is aware of being infected with HIV must inform “any sexual contact in advance” of this fact. But the law does not define “any sexual contact.” Is it holding hands? Kissing? Nor does the law say what “in advance” means.

5: Criminalisation increases stigma. From the first AIDS diagnosis 30 years ago, HIV has carried a mountainous burden of stigma. One overriding reason: the fact that HIV is sexually transmitted.  No other infectious disease is viewed with as much fear and repugnance. It is tragic that it is stigma that drives criminalisation.

6: Criminalisation has a deterrent effect on testing. AIDS is now a medically manageable disease, but why would someone want to know their HIV status when that knowledge may lead to prosecution? Criminalisation assumes the worst about people with HIV and punishes their vulnerability.

Denmark’s legislation also makes it difficult for a country that ought to be a world leader in non-discrimination to confront other countries’ laws.  For example, Denmark has contributed constructively in the international movement to abolish the travel restrictions for people with HIV.

The recent decision by the Danish Justice Minister, Lars Barfoed, to suspend the Danish Criminal Code provision on HIV on the grounds that people living with HIV on treatment today live much longer lives and the risk of transmission of the virus to others is much reduced is certainly a step in the right direction. I congratulate the Danish Government on this decision. The very positive developments in HIV treatment is indeed a good reason to radically reconsider whether Penal Code 252. 2 should exist at all.

Penal Code provisions are a piece of the puzzle that shows how a country treats its citizens. Let us fight stigma, discrimination and criminalisation – and fight for common sense, effective prevention and access to treatment.  Only in this way can we fight this global epidemic.

Edwin Cameron is a judge of South Africa’s Constitutional Court who is himself living with HIV.

US: Montana legislator’s HIV “ignorance in the first degree” exposed and denounced

Judicial ignorance is something I often highlight on my blog.

Sadly, it is most often (but not exclusively) seen in the United States – a place where a Michigan prosecutor believes that biting someone in self-defence is terrorism if the biter is HIV-positive; where a Texas defence lawyer believes people with HIV are potential “serial killers” if they don’t disclose before having unprotected sex because their HIV is a “deadly weapon”; and where a North Carolina judge believes that a man who attempts to bite a police officer on the ear is also a walking ‘deadly weapon’.

Today I’m adding a new label to my blog – political ignorance – inspired by two scary, crazy, and dangerous events in as many weeks.

On Tuesday, Montana Representative Janna Taylor (a Republican, of course) testified in favour of Montana keeping the death penalty by citing the example of the most heinous, murderous crime she could think of – prisoners with HIV aiming saliva and/or blood-soaked paper “blow darts” at prison guards in an attempt to kill them.

Yesterday, the video of Rep. Taylor’s comments, originally posted on YouTube by shitmyrepsaid went viral throughout the US bloggersphere – from Montana bloggers Don Pogreba and D Gregory Smith to more mainstream gay sites, Towleroad and Queerty.

[Update 11 February: LGBT health blog, Crowolf, features an email response from Rep. Taylor that states:

I have tried to answer every email, even the ones that were not professional, as you worded it. My words were very poorly chosen, and I apologize for them. Montanans with HIV are simply people living with a virus. I was intending to illustrate that there are scenarios we cannot currently conceive of that may warrant the death penalty, and to remove it from the available options for punishment at this time would be misguided. HIV transmission was not an appropriate example. Again, I sincerely apologize for my inappropriate and inelegant statement, and I encourage all Montanans to become better educated about HIV.

It’s all well and good to respond to individual emails, but there’s nothing yet on Rep. Taylor’s own website making her HIV u-turn clear to her constituents and rest of the America.]

The idea that HIV could be transmitted in this way, and that this could be considered not just murderous intent, but worthy of the death penalty, is a point of view so dripping in HIV-phobic ignorance that at first I thought it wasn’t worth blogging about.  After all, it’s so scarily out-of-step with science that surely no-one would take her comments seriously. Why give her poisonous ideology any further oxygen?

But during a lengthy email discussion yesterday with Sean Strub, senior advisor to the Positive Justice Project (PJP) and Catherine Hanssens, executive director of the Centre of HIV Law and Policy which hosts the PJP, I was persuaded that this lawmaker’s ignorance provided an excellent opportunity to highlight exactly how HIV-related ignorance plays its part in the further stigmatisation – and criminalisation – of people with HIV.

More of that in a moment.

Now this wasn’t the only recent case of a US politician furthering HIV-related stigma in the name of ‘justice’.  Just last week, as highlighted in my blog post here, Nebraska State Senator Mike Gloor introduced a bill into the Nebraska State Legislature that would especially criminalise people with HIV (and viral hepatitis) who assaulted a peace officer through body fluids – notably by spitting, or throwing urine at them. (Neither of these risk HIV exposure.)

In both cases, PJP reacted swiftly to the threat. They worked closely with advocates in Nebraska to fight against the proposed body fluids assault bill and despite local media coverage that appeared to suggest strong support for the bill, local advocates reported (in a private email to the various PJP workgroups – full disclosure, I’m a member of the media workgroup) that because of opposition testimony from ACLU-NE and Nebraska AIDS Project, good questions were raised by some Senators on the committee that may lead to them to seriously consider blocking this bill’s passage.

And last night, PJP put out a press release that highlights Rep. Taylor’s “ignorance in the first degree”.

When HIV-related ignorance and stigma emanates from the mouths of politicians and lawmakers, this becomes state-sponsored ignorance and stigma – the most dangerous kind, the kind that can lead to HIV-specific criminal laws, or provisions that turn misdemeanours into felonies resulting in significantly longer sentences for people living with HIV than those without.

Treating people with HIV as potential criminals when in fact we pose no real threat with the kind of behaviour politicians believe is ‘dangerous and criminal’, takes away our human and civil rights and furthers the public’s and media’s perception that people with HIV are something to be feared or hated.

PJP’s powerful and co-ordinated response is the kind of advocacy in action that needs to be replicated wherever the rights of people with HIV are threatened by ignorance and stigma.

The full text of the press release is below. It can also be downloaded as a pdf here.

Positive Justice Project
Denounces Montana Legislator’s Uninformed Comments
“…ignorance in the first degree…”

Contact:
Catherine Hanssens, 347.622.1400
chanssens (at) hivlawandpolicy.org
Sean Strub, 646-642-4915
sstrub (at) hivlawandpolicy.org

New York, February 9, 2010 – Leading public health officials and advocates for people with HIV responded swiftly to news that a Montana state legislator, while testifying in favor of retaining the state’s death penalty statute, suggested that prisoners with HIV make paper “blow darts”, put their blood or saliva on them and throw them at prison guards in an attempt to kill them.

A video of the legislator’s comments was posted earlier today by blogger Don Pogreba at the Montana-based website intelligentdiscontent.com.

According to the federal Centers for Disease Control, HIV is not transmitted by saliva, and HIV in blood dies quickly after being exposed to air. HIV-infected blood does not survive outside the body long enough to cause harm, unless it penetrates mucus membranes.

The Positive Justice Project, a program of the New York-based Center for HIV Law & Policy, is a coalition of more than 40 public health, civil liberties and HIV/AIDS organizations combating HIV criminalization and the creation of a “viral underclass”; they oppose laws that treat people with HIV different from how those who do not have HIV, or who do not know their HIV status, are treated.

The Center’s executive director, Catherine Hanssens, said “Rep. Janna Taylor’s remark is ignorance in the first degree. Quite frankly, it is typical of the ignorance we had to deal with decades ago, early in the epidemic, when little was known about how the virus was transmitted. It is astonishing that an elected official today could be so fundamentally uninformed.”

Julie M. Scofield, executive director of the National Association of State and Territorial AIDS Directors (NASTAD), said “My plea to Rep. Taylor and legislators at all levels concerned about HIV is to do your homework, talk with public health officials and get the facts. Spreading fear about HIV transmission will only set us back in the response to the HIV/AIDS epidemic in Montana and every other state in the U.S.”

Other experts from Montana and national organizations also commented on Rep. Taylor’s remarks:

“Ms Taylor’s statement just shows the need for greater support and funding for HIV education and prevention in the State of Montana. Unfortunately, misinformation such as this is all too prevalent, leading to pointless discrimination and myth-based fears and policies. After 30 years of dealing with HIV, the public should be much better informed about its transmission. No wonder HIV infection rates haven’t stopped.”

— Gregory Smith, co-chair of the Montana HIV/AIDS Community Planning Group, a licensed mental health counselor and a person living with HIV

“I am disturbed and disappointed to hear such misinformation coming from a local government official, but sadly I am not especially surprised. As we enter the 30th year of this worldwide epidemic I am frequently reminded of the need for continued education and outreach, the facts are still not clearly understood by the general masses. Perhaps if we were more willing as a society to discuss more openly the risk behaviors that transmit the virus we would not find ourselves responding to such an insensitive and false statement.”

— Christa Weathers, Executive Director, Missoula AIDS Council, missoulaaidscouncil.org

“HIV infected blood cannot infect someone through contact with intact skin or clothing if the skin underneath is intact.”

— Kathy Hall, PA-C, retired American Academy of HIV Medicine-certified HIV Specialist, Billings, MT

“The comments made by the Montana Legislator really demonstrate total ignorance about how HIV is transmitted. If elected officials don’t understand the basic facts, how can we expect young people and those at greatest risk to understand them?”

— Frank J. Oldham, Jr., President, National Association of People with HIV/AIDS, napwa.org

“This is an example of people with HIV, especially those who are incarcerated, being stigmatized and used as fear-fodder by politicians whose ignorance and quickness to demonize people with HIV outweighs common sense and two minutes of Google research. Even when someone is exposed to HIV, a 28-day course of anti-HIV drugs used as post-exposure prophylaxis is effective in preventing HIV infection. It also isn’t a death sentence; those who acquire HIV today and have access to treatment generally don’t die from AIDS.”

— Sean Strub, founder of POZ Magazine, a 30 year HIV survivor and senior advisor to the Positive Justice Project.

****
The Positive Justice Project is the first coordinated national effort in the United States to address HIV criminalization, and the first multi-organizational and cross-disciplinary effort to do so. HIV criminalization has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission.

For more information on the Center for HIV Law and Policy’s Positive Justice Project, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.

To see the Center for HIV Law and Policy’s collection of resources on HIV criminalization, go to: http://www.hivlawandpolicy.org/resourceCategories/view/2

The Positive Justice Project has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the Positive Justice Project working groups, email: pjp (at) hivlawandpolicy.org

Switzerland: Government ignores expert recommendation to decriminalise non-intentional HIV exposure and transmission

The Swiss Government has ignored expert recommendations to decriminalise everything but intentional HIV exposure or transmission following a consultation on changing Article 231 of the Swiss Penal Code, according to a strongly worded press release from Groupe sida Genève issued yesterday.

At the International AIDS Conference in Vienna earlier this year, the Swiss Federal Commission for AIDS-related issues – the Swiss statement people – described how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. (Download the pdf here)

The law has only ever been used to prosecute people with HIV. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law.

The Swiss Federal Commission for AIDS-related issues issued a statement in September 2010 (available in English here) that stated:

[Current Swiss] legal practice is in blatant contradiction to the tried and tested Swiss Aids policy held by broad social consensus. Accordingly, the FCAI calls for the following requirements from the lawmakers and the practitioners of criminal law (public prosecution and judicial authorities):

1. Public prosecution and judicial authorities have to take into account the scientific findings on the infectiousness of HIV-positive persons under successful therapy (FCAI statement 2008). Persons, who are not considered to be infectious according to the FCAI criteria, shall not be punished. Any processes are to be stopped and previous sentences, when needed, are to be revised.

2. Also for HIV-positive persons, whose virus count is not yet under the detection limit, the risk of transmission is very low. The courts are therefore advised not to undertake hastily a possible deliberate action. The highest court of law of the Netherlands, in a leading decision in 2005, made an exemplary judgement in this regard.

3. The legislative body has to amend Art. 231 SPC such that amicable unprotected sexual contact may no longer be subsumed under this code. An opportunity for this is offered by the current (2010) revision of the epidemic law.

 The draft of the proposed new Law on Epidemics removed much of the draconian provisions of  Article 231, leaving only intentional exposure or transmission a criminal offence.

However, according to Groupe sida Genève

The present version put before the assembly maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.

Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.

The consequence is that Switzerland will move from having one of the most draconian and discriminatory laws on HIV exposure in the world to one that is similar to Canada’s – making disclosure of HIV-positive status a defence to alleged exposure or transmission, in effect mandating disclosure before any kind of unprotected sex by someone aware they are living with HIV.  This is a lost opportunity for Switzerland to lead the world in decriminalisation of non-disclosure, alleged exposure and non-intentional transmission (following the lead of The Netherlands in 2005).

Although a previous Geneva Court of Justice aquittal (and the upholding of the subsequent Federal Court appeal) now suggests that someone with an undetectable viral load would not be found guilty of HIV exposure (with or without disclosure), this is not the case in Switzerland’s 25 other cantons.

As Groupe sida Genève point out this latest development “not only maintains the criminalisation of HIV-positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination.”

I’ll be posting more on this once I’ve digested all of the documents linked to in the press release below, and spoken with some insiders in Switzerland.  But I join Groupe sida Genève in condemning “the backwards attitude” of the Swiss authorities. 

Full press release below:

Groupe sida Genève denounces the proposed changes to art. 231 of the Swiss Penal Code. Exposure and transmission of HIV will remain a criminal offense despite best evidence that criminalisation is incompatible with the aims of successful general prevention programmes.

The executive branch of the Swiss government, the Federal Council, has introduced a bill in the federal assembly to revise the Federal Law on fighting infectious human diseases. (See the Federal Department of the Interior’s press release of Friday December the 3rd)

Included in the new provisions was one, article 86 (80 in the consultation version), to amend article 231 of the Swiss Penal Code incriminating the propagation of an infectious human disease.

The bill as it came out of the consultation process proposed to abrogate the paragraphs dealing with intentional and negligent exposure and transmission of HIV. Only the qualified form of malicious intent would have been indictable, the others would not have been considered offenses.

However, the bill, in the present version put before the assembly, maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.

Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.

Groupe sida Genève is convinced this amendment represents the complete opposite of the position taken by the Swiss Federal Commission for AIDS-related issues (FCAI) in its most recent Declaration on the criminality of HIV transmission. It not only maintains the criminalisation of HIV positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination.

Groupe sida Genève is dismayed by this proposal and would like to encourage all to join in our condemnation of the backwards attitude of the Swiss Authorities. Please give this information the widest possible distribution in your networks.

Background

All Swiss federal legislation goes through a consultation procedure where all concerned stakeholders can give their views on proposed legislation. Bills traditionally include the results of the consultation procedure as this ensures the bill achieves the greatest possible consensus.

Article 231, incriminating propagation of a human disease, is one of two provisions in the Penal Code under which persons accused of transmission and exposure to HIV are customarily indicted, the other being article 122 concerning grievous bodily harm.

Under article 231 the intentional transmission of a human disease is punished by a custodial sentence of not more than 5 years whilst the negligent transmission or exposure by a sentence of not more than 3 years. In both cases the minimum sentence is 30 day-fines (jour-amende).

Approximately 39 HIV positive persons have been sentenced under one or the other or a combination of both provisions. In 2009, the criminal chamber of the Geneva Cantonal Court dismissed a case of exposure based on the 2008 declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on infectiousness of HIV under effective ART and the expert testimony of Professor Bernard Hirschel. To date it remains unclear whether the decision will be make jurisprudence.

References and further reading

Federal department of the Interior press release on the Revision of the Federal law on the fight against Epidemics. 03.12.2010 (link)

Declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the criminality of HIV transmission. 18.11.2010 (PDF)

Summary of the declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the infectiousness of HIV on effective ART treatment (Swiss statement). 30.01.2008 (PDF in French) (Canadian HIV/AIDS Legal Network’s English translation  PDF)  The full text of the declaration was published in: Schweizerische Ärztezeitung / Bulletin des médecins suisses / Bollettino dei medici svizzeri / 2008; 89:5)

Bill tabled in the federal assembly as PDF: (in French)(in German)(in Italian), 03.12.201

Message on the bill tabled in the federal assembly as PDF: (in French)(in German)(in Italian), 03.12.2010

Consultation draft of the bill as PDF: (in French)(in German)(in Italian), 08.01.2008

Report on the results of the consultation as PDF: (in French)(in German)(in Italian), 20.10.2008

“S” v. Procureur Général, Judgement, February 23rd 2009, Chambre pénale, Geneva. (PDF in French with an English translation by the Canadian HIV/AIDS Legal Network from the resources for lawyers and advocates webpage.)