Global: HIV and the criminal law book now available; hear me speak in Ottawa and Toronto

The next few weeks sees my involvement in a flurry of anti-criminalisation advocacy in the United States and Canada, coinciding with the publication of the book version of the new international resource I produced for NAM and an article in HIV Treatment Update summarising the current global situation.

HIV and the Criminal Law


Email: info@nam.org.uk to order a copy

Preface by The Hon. Michael Kirby AC CMG and Edwin Cameron, Justice of the Constitutional Court of South Africa.

Introduction How this resource addresses the criminalisation of HIV exposure and transmission.

Fundamentals An overview of the global HIV pandemic, and the role of human rights and the law in the international response to HIV.

Laws A history of the criminalisation of HIV exposure and transmission, and a brief explanation of the kinds of laws used to do this.

Harm Considers the actual and perceived impact of HIV on wellbeing, how these inform legislation and the legal construction of HIV-related harm.

Responsibility Looks at two areas of responsiblity for HIV prevention: responsibility for HIV-related sexual risk-taking and responsibility to disclose a known HIV-positive status to a sexual partner.

Risk An examination of prosecuted behaviours, using scientific evidence to determine actual risk, and how this evidence has been applied in jurisdictions worldwide.

Proof Foreseeability, intent, causality and consent are key elements in establishing criminal culpability. The challenges and practice in proving these in HIV exposure and transmission cases.

Impact An assessment of the impact of criminalisation and HIV – on individuals, communities, countries and the course of the global HIV epidemic.

Details: international resource and individual country data A summary of laws, prosecutions and responses to criminalisation of HIV exposure or transmission internationally, and key sources of more information.

HIV Treatment Update

The August/September issue of NAM’s newsletter, HIV Treatment Update, features a 2500 word article, ‘Where HIV is a Crime, Not Just a Virus’, that examines the current state of criminalisation internationally.

Here’s the first part: click on the image to download the complete article.

Since 1987, when prosecutions in Germany, Sweden and the United States were first recorded, an increasing number of countries around the world have applied existing criminal statutes or created HIV-specific criminal laws to prosecute people living with HIV who have, or are believed to have, put others at risk of acquiring HIV.

Most of the prosecutions have been for consensual sexual acts, with a minority for behaviour such as biting and spitting.

In the majority of these cases, HIV transmission did not occur; rather, someone was exposed to the risk of acquiring HIV without expressly being informed by the person living with HIV that there was a risk of HIV exposure.

In the cases where someone did test positive for HIV, proof that the defendant intended to harm them and/or was the source of the infection has often been less than satisfactory.

South Africa’s openly HIV-positive Constitutional Court Justice, Edwin Cameron, called for a global campaign against criminalisation at the 17th International AIDS Conference in Mexico City in 2008, declaring: “HIV is a virus, not a crime.”

Two years later, the discussion for people working in the HIV sector has moved on from a debate about whether such laws and prosecutions are good or bad public policy to one on how to turn the tide and mitigate the harm of criminalisation. Most of them advocate, in the long term, for decriminalisation of all acts other than clearly intentional HIV transmission. This, however, is a debate that many people outside the HIV sector have yet to even start.

The Positive Justice Project

Next Tuesday, September 21st, I’ll be joining a group of US anti-criminalisation advocates for a meeting in New York to discuss how to move towards mitigating the harm of US disclosure laws and prosecutions for HIV exposure and non-intentional transmission.

The goals of the Positive Justice Project campaign include:

Broader public understanding of the stigmatizing impact and other negative public health consequences of criminalization and other forms of discrimination against people with HIV that occur under the guise of addressing HIV transmission.

Community consensus on the appropriate use of criminal and civil law in the context of the HIV epidemic.

Clear statements from lead government officials on the causes and relative risks of HIV transmission and the dangers of a criminal enforcement response to HIV exposure and the epidemic.

A broader, more effective community-level response to the ongoing problem of HIV-related arrests and prosecutions.

Reduction and eventual elimination of the inappropriate use of criminal and civil punishments against people with HIV.

Ottawa: September 29th 6pm-8pm

Click on the flyer to download

I’ll be in Canada’s capital, Ottawa, on Wednesday September 29th to speak about my experiences of blogging on criminalisation worldwide, and to provide examples of international anti-criminalisation advocacy that Canadian advocates might find useful in their fight against the ramping up of charges for non-disclosure and the irrational and scare-mongering response to accusations of non-disclosure from law enforcement.

Ottawa has become ground zero for anti-criminalisation advocacy in recent months following the arrest and public naming and shaming of a gay man for non-disclosure. Following community outrage at the man’s treatment, the Ottawa Police Service Board rejected calls to develop guidelines for prosecution for HIV non-disclosure cases.

The meeting will also feature several leading lights in Canadian, if not global, anti-criminalisation advocacy: Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network; HIV-positive advocate David Hoe; and Eric Mykhalovskiy, Associate Professor at York University, Department of Sociology.

Toronto: September 30th 6.30pm-8.30pm

Click on image for link to Facebook event page

The following day, Richard, Eric, myself and a fourth panellist (TBC) will be presenting at Silence, Sex and Science, Thursday, September 30, 2010, 6:30 to 8:30 pm at Oakham House, 55 Gould Street, Toronto.

I hope to meet any blog readers who can make it to either of the Canadian meetings, and will, of course, be posting more about these meetings in the future.

Germany: Nadja Benaissa trial is a distracting sideshow

Too much focus on the individual issues of personal morality of the Nadja Benaissa case in press reports around the world (822 and counting) and during my three live interviews with BBC World Service radio yesterday (the first of which was also used on the BBC news online website) led me to write this editorial for The Guardian.

The trial of No Angels singer, Nadja Benaissa, began yesterday and has already received worldwide media attention. It highlights what experts working in HIV prevention, treatment and care have long argued: that laws and prosecutions as a result of non-disclosure of HIV-positive status are ineffectual, counterproductive and unjust.

People with HIV around the world – including Benaissa – are being scapegoated for our collective failure in preventing new HIV infections. Moreover, it is the stigma surrounding HIV – exacerbated by the media circus that accompanies such trials – that results in far more new infections than the exceedingly rare case of an individual facing the attention of the criminal justice system.

Read the rest on The Guardian’s website, and please comment there.

I’d like to highlight a couple of other positive pieces (hidden amongst the salacious gossip masquerading as court reporting).

Silvia Petretti’s blog post asks some very good questions

For those of us who are quick to say: how could she? I would like to ask a few questions: could you imagine finding out you are pregnant, and that you also have HIV, at 17? Can you imagine the fear that you could possibly infect the baby, and the anxiety that the medications you need to take in order to prevent the transmission may harm you and the baby? Can you imagine the fear for your own self of dying a horrible and shameful death? How would you tell your partner, or your ex, or the person you are hoping to have a relationship with? And what could the consequences be?

The Times of South Africa highlights that the country’s top experts decided against criminal prosecutions for non-disclosure on very good policy grounds.

The South African Law Reform Commission investigated the possibility of criminalising HIV exposure or transmission, but came to the conclusion that it would not be the best way to deal with the spread of the virus. According to a report by the Law, Race & Gender Unit and the Gender, Health and Justice Research Unit of the University of Cape Town, a note with the words “HIV positive Aids” was found on the body of a young teacher and wife, Mpho Motloung, 25, who was shot through her head in Meadowlands, Soweto, in August 2000. Also in 2000, Susan Teffo discovered she was HIV positive, and when she disclosed her status to her husband he burned her face over a Primus stove. “These are the cases that have received publicity, and the frightening likelihood is that they represent merely the tip of the iceberg,” the unit reported.

Finally, Deutsche AIDS Hilfe, which is reporting from the trial (in German only), has produced a new policy statement about HIV and the use of criminal law which can be downloaded in English here.

Verdict is due August 26th, according to The Guardian. Am unlikely to write about this case again before that date for reasons that should be clear in the headline of my editorial.

Austria: Matthew Weait guest blogs on recent mother-to-child transmission conviction of HIV denialist

The recent conviction of Austrian HIV denialist Barbara Seebald for:

comes at critical time, just before the subject of the criminalisation of HIV exposure and transmission comes under the spotlight at the International AIDS Conference (AIDS 2010) held in Austria’s capital Vienna.

Mrs Seebald – whose husband, Leonhard, had been charged as co-conspirator, but who died in May – was given a ten month suspended sentence, which she is currently appealing. Her case received the full UK tabloid treatment in The Sun last Tuesday.

Dr Matthew Weait, Reader in Socio-Legal Studies at Birkbeck College, London, author of Intimacy and Responsibility: The Criminalisation of HIV Transmission, and a member of the Technical Advisory Group of the recently-launched UNDP/UNAIDS Global Commission on HIV and the Law, has provided me with a thought-provoking analysis of the case that I’m posting in full below.

Denialism and Criminalisation

by Matthew Weait

The recent Seebald case in Austria raises a number of thorny questions for those opposed to the criminalisation of HIV exposure and transmission. These are my initial thoughts.

Why do we punish? Among the reasons are to make a moral example (a retributive justification), or to deter the defendant and others (an instrumental justification). If we subscribe to a retributive justification, then the defendant needs to be morally blameworthy – not just generally, but in respect of the particular conduct they have engaged in. Such blameworthiness will typically be because they intended the harm that was committed, because they took an unjustifiable risk, or because (more rarely) they were grossly negligent. As a matter of general principle, retribution requires moral fault on the part of the defendant, in the sense that they (not some hypothetical person) knew that they were at fault and were acting wrongly. If we subscribe to a more instrumental justification – and are more concerned with the effects of a person’s conduct than with their moral fault – we may be satisfied with a criminal law that takes an objective approach. In other words, would a reasonable person have done this? Would a reasonable person have been aware of the risk?

Someone who fails to take precautions against the onward transmission of HIV and / or who transmits HIV to another but who honestly believes that HIV does not cause AIDS, or who denies the relevance and / or meaning of HIV infection, cannot, according to a purely retributive approach, be legitimately punished. The honest belief negates their fault. Very few criminal law systems subscribe to such an approach, because there is always a social or public interest in harmful, or potentially harmful behaviour. More typically there needs to be a threshold moral fault, coupled with an objective (public interest) test.

The question raised by the Seebald case, then, is whether a person who honestly holds a denialist position may legitimately be punished where they infect another person with HIV, or expose them to the risk of HIV infection?

From a purely legal perspective, in the context of Austrian criminal law, the answer is yes. The Austrian penal code criminalises both intentional and negligent exposure and transmission. Put simply, its concern is not so much with the moral blameworthiness of the defendant as in the protection of the interests of others. There is however, a more general question as to whether the Austrian approach, and that of other countries which have similar laws, is justifiable.

My own answer is no, for the following reasons.

First, I believe that the criminalisation of non-intentional HIV transmission and exposure is unjustifiable on public health grounds, as well as being morally suspect. There is widespread international agreement on this point, the reasons articulated in a number of well-informed, thoughtful and coherently argued interventions. It follows that someone who honestly (even if misguidedly) denies the relationship between HIV and AIDS cannot legitimately be punished for onward transmission of HIV, unless one takes the view that such honest belief is to be ignored. And if we ignore it, then we fail to take seriously the reasons – whatever those might be – for denialism. These might be grounded in a person’s particular life story; or they might result from misinformation or misunderstanding. Whatever its cause, and however difficult it might be to understand that denialism or to sympathise with it, our incomprehension cannot be a sufficient justification for criminalisation and punishment. Put another way, a general opposition to criminalisation of non-intentional exposure and transmission cannot be displaced by conduct whose roots lie in ignorance. Doing otherwise effectively makes a failure to accept what most other people believe a sufficient justification for punishment, and that has a frighteningly totalitarian ring to it.

More generally, it seems to me that the criminalisation and punishment of a denialist – apart from the immediate impact on her or his personal and domestic life – displaces the more important issues (a) of systemic failures in HIV/AIDS education, and (b) of the effects of HIV-related stigma and prejudice. If we criminalise people who hold beliefs that the majority do not share, we risk reducing larger, structural, general problems to the level of the particular, the individual and exceptional. This will get us nowhere fast, and simply provides further opportunities for human interest-driven, and scandal-hungry media to demonise and reinforce negative images of people living with HIV.

We must resist the framing of events and episodes such as those represented by the Seebald case as a criminal law problem. If we do this, we necessarily imply that there is a criminal law solution – or, more strongly, that only a criminal law solution is needed. This is both wrong-headed and dangerous. The problem is far more complex, and requires a far more nuanced, sensitive and humane response – one that understands, acknowledges and addresses the reasons for a person’s denialism position rather than simply punishing them for it.

Mexico: Laws Criminalising HIV Transmission Are Discriminatory

I’m republishing this excellent article from the Inter Press Service providing the first overview I’ve ever seen of the individual Mexican state’s laws that can be used to prosecute people with HIV for not disclosing before sex. So far there have been no prosecutions.

Mexico: Laws Criminalising HIV Transmission Are Discriminatory

Inter Press Service – June 29, 2010
Emilio Godoy

MEXICO CITY, Jun 29 (IPS) – In 30 of Mexico’s 32 states there are laws penalising transmission of HIV, the AIDS virus, which are regarded by experts as discriminatory and ineffective in curbing the epidemic.

Under the Federal Criminal Code, passing on a sexually transmitted infection (STI) or incurable disease is a crime punishable by up to five years in prison, and this is mirrored in most of the states’ legislation, where fines and community service are sometimes included as penalties.

In two states, Guerrero in the southwest and Tamaulipas in the northeast, the laws refer specifically to HIV/AIDS.

The central states of Aguascalientes and San Luis de Potosí are the only ones that do not criminalise the transmission of STIs.

In Guerrero, article 195 of the state penal code establishes prison terms of three months to five years and fines of between 20 and 100 days of the defendant’s wages for anyone who is aware they have an STI or HIV and has sexual intercourse with someone who is unaware of their condition.

In Tamaulipas, article 203 provides for sentences of six months to six years, and fines of between 10 and 50 days of the defendant’s wages, for the same offence.

“This is an alarming situation. HIV transmission should not be criminalised. It is a discriminatory practice that lends itself to continued justification of attitudes like homophobia,” José Aguilar, the national coordinator of the non-governmental Red Democracia y Sexualidad, which focuses on sex education and advocating sexual rights, told IPS.

So far, these laws have not been enforced against HIV-positive people, which is why there have been no moves to repeal them.

“This legislation was intended to curb the HIV/AIDS epidemic; but clearly, it criminalises people living with HIV. It also violates a number of human rights, for instance the rights to privacy and sexual freedom,” Mario Juárez, at the department of analysis and proposals of the state National Council to Prevent Discrimination, told IPS.

This country of 107 million people has more than 200,000 people living with HIV — the second largest infected population in Latin America after Brazil — and an HIV infection rate of 0.4 percent. In the region, over two million people are living with the virus.

Criminalisation of the transmission of HIV/AIDS is on the agenda for the 18th International AIDS Conference scheduled for Jul. 18-23 in Vienna, Austria. It was also discussed at the 11th National Congress on HIV/AIDS and other Sexually Transmitted Infections, held last November in the southern Mexican state of Chiapas.

And at the 17th International AIDS Conference held in August 2008 in Mexico City, the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations Development Programme (UNDP) presented a global report on the growing criminalisation of HIV transmission.

Mexico’s national report for 2008-2009 on the fulfilment of the Declaration of Commitment on HIV/AIDS, adopted by the United Nations General Assembly Special Session (UNGASS) in 2001, does not mention the effects of these laws.

“It’s important to have prevention measures and awareness-raising campaigns, and to build a culture of respect. Civil society is always fighting discriminatory measures like these, and always struggling against the current,” said Aguilar.

In 2007, UNAIDS and the UNDP supported the publication of a document, “Ten Reasons for Opposing Criminalisation of HIV Exposure or Transmission“, drawn up by a coalition of organisations working on HIV/AIDS, human rights and gender issues.

“The push to apply criminal law to HIV exposure and transmission is often driven by the wish to respond to serious concerns about the ongoing rapid spread of HIV in many countries, coupled by what is perceived to be a failure of existing HIV prevention efforts,” the document says.

The 10 reasons include the ineffectiveness of such laws and their discriminatory and stigmatising nature, as well as the view that they “endanger and further oppress women.”

In Mexico the sex ratio among people living with HIV was 6.6 men for each woman in 1995, a proportion that dropped to 5.1 in 1996 and 3.6 in 2008, before increasing to four men for every woman in 2009.

Between 1995 and 2009, there were 640 homophobia-related murders, 143 of which were committed in the Mexican capital, according to the Federal District Commission on Human Rights.

“It’s an issue that just hasn’t been raised forcefully enough, and so the state has not reacted. Civil society organisations should take up the question and air it in public,” said Juárez, in regard to the laws and their possible consequences.

But so far there have been no legislative initiatives to eliminate the laws criminalising HIV transmission in Mexico.

The Global Fund to Fight AIDS, Tuberculosis and Malaria has approved a grant of 70 million dollars for a Mexican project aimed at high risk groups such as men who have sex with men, sex workers and intravenous drug users.

The Global Fund, based in Geneva, Switzerland, is a public-private partnership of international donors, the governments of the Group of Eight most powerful countries, and non-governmental organisations, devoted to preventing and treating AIDS, tuberculosis and malaria in needy countries.

UK: The scandal of Scottish HIV exposure prosecutions (updated)

Update: June 29 2010

Mark Deveraux’s appeal against the length of his sentence has been successful and he will now serve eight years in prison, rather than the ten years passed down in February.

BBC news online reports

At the Court of Criminal Appeal in Edinburgh, Lord Osborne, sitting with Lord Kingarth, ruled that the sentence had been excessive.

Mr Deveraux continues to make tabloid headlines. On Sunday, Britain’s largest circulation newspaper, the News of the World reported

HIV monster enjoys day out of jail. HIV monster Mark Devereaux was out in the sunshine this week — on his first jaunt from jail to have treatment for his disease at the taxpayers’ expense. The fiend, who infected one lover and slept with three other women knowing he had HIV, was whisked out of Peterhead nick on Thursday for a trip to Aberdeen Royal Infirmary.

A second article that interviews his ‘victim’ provides more details here.

The appeal judges decided on Tuesday that Devereaux should have been jailed for 12 years but his early admission had earned him a discount of a third.

Original post: Feb 26 2010

Yesterday, Mark Devereaux was sentenced to ten years in prison after being convicted of infecting one female partner with HIV and having unprotected sex with three other women without disclosing his HIV status.

There has been much media response, ranging from the sensationistically stigmatising (Scottish Sun) to the balanced and liberal (BBC via THT).

However, my favourite response comes from a blog posting by a Scottish “socio-legal researcher [with] a particular interest in the diffusion of social knowledges and how they come to exercise legal force.” I am posting below, with their permission, the entire posting from the Lallands Peat Worrier blog entitled The scandal of Scottish HIV exposure prosecutions….

When it was reported that Mark Devereaux had plead guilty to four charges of culpable and reckless conduct in the High Court in Dumbarton, I wrote about some of the implications and justification for Scots criminalisation of HIV transmission. Let’s be clear on our facts. Devereaux did not tell four of his sexual partners that he had been diagnosed with the Human Immunodeficiency Virus. Reportedly, he had been in long term relationships with two of these women. One of the women with whom Devereaux had an extended relationship was herself diagnosed as HIV positive as a result of their unprotected sex. The three other women were not. Yet four charges were pressed against Devereaux for culpable and reckless conduct. The three for mere exposure, as opposed to reckless transmission of HIV despite personal knowledge of that status, are the first such prosecutions in the United Kingdom. He has now been sentenced.

My first post on this subject asked a number of questions, explored a number of the issues. How do we construct harm? How do we select what harms are punishable by our criminal law? By contrast, this post makes a more specific argument. I believe that despite his strongly unattractive conduct, his lies, the emotional distress he has certainly caused a number of people – that it is absurd to prosecute a man for “exposing others” – and notice how passively this constructs female sexuality – to HIV. On transmission, my mind is less made up. However, as I commented earlier, the present legal position means that it is at least theoretically illegal for those who are HIV positive to engage in procreative sex in Scotland. This is scandalous. Finally, partly informed by the foregoing, sentencing the miserable Mark Devereaux to 10 years in prison is palpably excessive. Through his legal agents, I hope he ventures to lodge an appeal against the sentence handed down by the Court this month.

The Scottish legal magazine the Firm have Lord Pentland’s full sentencing statement of the 25^th of February. They don’t begin well, confirming that “A man has been sentenced to ten years in jail after embarking on a series of sexual relations whilst in the knowledge that sexual contact would pass on the HIV infection to his partners” (my emphasis). This, as the facts of the case bear out, is total bunkum. Devereaux pled guilty to four charges of culpable and reckless conduct – three of which were prosecutions for “exposure”, while only one woman is now HIV positive as a result of Devereaux’s actions. We’re dealing with risk and potentialities here, not unavoidable necessities implied by the Firm’s would. Here is what Lord Pentland had to say:

“Mark Richard Devereaux, you have pled guilty to four charges of culpable and reckless conduct arising from a prolonged and sustained course of utterly irresponsible, dangerous and selfish sexual behaviour on your part. In short, knowing full well for many years that you had been infected with the Human Immunodeficiency Virus, you repeatedly and regularly had sexual intercourse with a number of women, without taking any steps to protect them against the risk that you would thereby transmit the virus to them. You were well aware from the medical advice given to you that you were at risk of infecting any sexual partner if you had unprotected intercourse, but you chose not to inform any of your partners that you had the virus and you chose not to use a condom or take any precautions.

You were engaged in long-term relationships with two of your victims and you infected one of these women with the virus. She decided to have an abortion when she discovered that she was infected. When the other of your long-term partners found your medication at one stage, you denied that it was for HIV and continued to have unprotected sex with her.

Those of your victims whom you did not infect were nonetheless each exposed to a considerable risk of contracting the virus. It seems to me that you callously and cruelly betrayed the trust placed in you by each of your partners and that you deceived them for your own self-centred reasons. Each of your victims has been devastated by these events. The person whom you infected will have to live for the remainder of her life with the knowledge that she now has the virus. She will require to have regular medical treatment and to take regular medication. She may suffer further consequences and must live with the uncertainty of that hanging over her. The charge in relation to her includes the serious aggravation that her life has been endangered. The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them.

I have taken full account of all that has been said on your behalf by Mr. Renucci and of the contents of the Social Enquiry Report. I accept that you have a good employment record and that you have no analogous criminal convictions. I am willing to accept, to some degree, that you pushed the reality of matters to the back of your mind, but this cannot in any sense excuse the highly irresponsible nature of your behaviour.

In my opinion, your persistent failure to be open about your condition and your prolonged insistence on having unprotected sex with a number of women over a period of several years shows a gross level of recklessness on your part and a total indifference to the welfare of those with whom you had intimate relations. In these circumstances, a substantial custodial sentence must be imposed. Had it not been for your guilty plea tendered at an early stage, I would have sentenced you to a term of thirteen years imprisonment.

You are entitled, as a matter of law, to a discount to reflect the fact that you pled guilty. In selecting the discount, I note that you made full admissions to the police when they interviewed you in July 2009. It is accordingly difficult to see that you ever had any possible defence to the charges. I accept, however, for the reasons set out by your counsel that your early admission of guilt had some utilitarian value. In the whole circumstances, I shall exercise the discretion conferred on me by reducing the sentence to one of ten years imprisonment. This is a cumulative sentence imposed in respect of all four charges. I shall backdate that sentence to 19 January 2010 since when you have been in custody in relation to this matter. I have already certified you for the purposes of the Sexual Offences Act 2003. The Clerk of Court will inform you in writing of the period during which the notification requirements will apply.”

Flatly, I’m appalled that the Court considers 13 years appropriate punishment for the charges as libelled, despite the reduced quantum for formal contrition and admission of fault. Moreover, a single ‘cumulative’ sentence is a suspicious beast – how does it break down? One year a piece for the exposure cases, ten for transmission? Giovanni Mola, whose case I discussed in my previous remarks, received nine years imprisonment for reckless and culpable transmission. He pled not guilty, however, and thus received no reduction for tendering a guilty plea. Given that comparator, it is difficult to tease out exactly how the case broke down in Lord Pentland’s mind. It is fair to argue that the exposure offences, which I’m particularly concerned with here, were tabulated to at least one year apiece.

Which brings us on to the nature of the conduct justifying such an imposition of penalty. Detective Inspector Martin Dunn, of Grampian Police, is quoted elsewhere remarking (fairly in the first sentence) that: “Devereaux acted with almost unbelievable irresponsibility and recklessness.” The Inspectors then embroiders this remark with another: “He has blighted the lives of all the women he had relationships with since being diagnosed”. I fail to see how this is true with respect to the three cases of culpable and reckless exposure. Like a tedious bore with his cyclically recurring ‘cancer-scare’ story, who relates how the queer, painless lump that put his world all out of joint and prompted melancholy reflections on his own morality was merely a benign cyst – yet still petitions for our interest and confirmation of his victim status. I don’t mean to imply that this whole process can have been easy for any of the women by any measure. I’m sure much upset and alarm resulted when Devereaux’s sexual partners realised that their past conduct may have had consequences which are unknown and challenging. But don’t let’s forget – only one of these women have any lasting physical repercussions. So why talk about them as if all four cases were fundamentally the same? Why the justifying innuendo, the implausible claims to permanent injury? “The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them”, said Lord Pentland. True enough, I’m sure. But hardly the stuff that state prosecutions are justified by, is it?

How many individuals sexually betray their fidelity to a partner – and generate analogous care and stress? How many parents inflict their neuroses on their guileless children to their permanent psychological injury and the disfigurement of their life’s potential? How many employers callously and with malice a’forethought, make their workforces redundant but luxuriate in inflated bonuses, to the workers’ significant anxiety, distress and manifest suffering? The point about all of this is not to collapse any of these claims to have suffered, to have been the victim of another. Rather, they highlight the crucial point – the criminal law doesn’t exist to salve hurt feelings or correct all the small and major injustices which we all inflict on one another. Its causes of action are generally and ought to be far narrower than the manifold capacity of humankind to err and sin. There but by the Grace of God, you might argue, for these three women, left unharmed. No thanks to Devereaux, certainly, but smiling Fortune and a bit of luck. Yet this isn’t just about one man, his lies, his breaches of trust, his scurrying and contemptible character. We operate within an ideology of legal rationality, where Devereaux the individual is separable from Devereaux the legal category, the formal authority, the basis for legal reasoning in the future. This second Devereaux concerns me acutely – the prosecution and punishment of HIV exposure and the criminalisation of the sex lives a section of the community should concern us all. Particularly with the tabloids commentating at a shrill fever pitch, full of passionate intensity.

Canadian HIV law at a crossroads (Xtra.ca)

Reposting this article from Xtra.ca published online today. Tomorrow’s verdict (due to be issued 9am Vancouver time) will be as important to people living with HIV – and public health – in Canada as the outcome of UK’s general election. Will provide full details of trial and commentary on Monday.

Canadian HIV law at a crossroads

CRIMINALIZATION OF HIV / Vancouver, Edmonton and Hamilton cases could affect future police & crown decisions

Nathaniel Christopher & Neil McKinnon / Toronto / Thursday, May 06, 2010

Cases in three provinces could shape the way HIV non-disclosure is treated by the courts in this country.

In Vancouver, an HIV-positive man awaits a verdict after a lengthy trial. He and his boyfriend had unprotected sex very rarely — possibly just once — and the poz partner was always the bottom. The trial judge has ordered a publication ban on both men’s names.

In Hamilton, a poz guy had charges against him stayed because the complainant and accused only engaged in oral sex.

And in Edmonton, a straight man in his 50s is facing an assault charge for HIV non-disclosure, but police — who have a history of splashing names and photos around in the media — are refusing to release his name.

Although there is no HIV law on the books, Canadian police have, since the mid-’90s, been charging people with offences — ranging from assault to murder — for failing to disclose their health status before having unprotected sex. HIV activists have long said that transmission should be a public health matter, not a criminal one.

In Vancouver, Justice Lauri Ann Fenlon was, as Xtra goes to press, expected to render a verdict on May 7. But she has already hinted that the case could be appealed on constitutional grounds.

The defendant is represented by BC Civil Liberties Association lawyer Jason Gratl. Gratl called Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, to the stand to testify about the adverse effects of HIV criminalization.

At the trial, Fenlon said Elliott raised important policy issues that an intervener might put before the appeal courts or the Supreme Court of Canada, but that his testimony was not relevant to the issue before her.

The court, consequently, did not consider Elliott’s testimony, but if the accused is convicted, they may end up making their case in appeals.

Elliott testified to the challenges of requiring disclosure in all circumstances, saying that approximately one quarter of all people in Canada infected with HIV don’t know they have it.

“I think people recognize challenges of HIV disclosure, including stigma and negative consequences that can very easily flow from their HIV status,” Elliott told the court. “Rather than expect people to overcome those barriers in every circumstance and impose a criminal penalty when they don’t, the emphasis should be on personal responsibility and risk reduction, a sensible prudent strategy in the ability of all people.”

He told the court that the stigma associated with HIV could be a disincentive to disclosure.

“People, quite legitimately, have concerns over employment, housing, loss of personal and other social rela-tionships, ostracism in community and denial of service by service providers,” Elliott testified. “Although we only have limited systemic research on HIV stigma, we certainly do have enough to document that there is still a pervasive stigma associated with HIV.”

He stressed the need for clarity in the law to better define what sexual activities between HIV-discordant couples constitute “significant risk” of serious bodily harm as set out in the 1998 Supreme Court of Canada case R v Cuerrier.

***

In the Vancouver case, the issue of what constitutes significant risk is paramount, because the defence is arguing that the risk of HIV transmission was as low as 1 in 2,500. In none of the three cases did transmission occur.

Dr Richard Mathias told the court he believes HIV transmission rates from anal intercourse are comparable to those from vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which could travel up the urethra. He mentioned that in the case of uncircumcised men, the risk is higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.

Crown counsel Brendan McCabe asked Mathias if he is aware of any incidents in the gay community of the virus going from an HIV-positive bottom partner to a negative top.

“No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act, but that number would multiply with each encounter.

McCabe suggested that if the accused and complainant had had five unprotected encounters, then the risk would be 20 in 10,000.

Mathias said the risk is comparable to sex between an HIV-negative bottom and an HIV-positive top when a condom is used.

The definition of “significant risk” was also at the heart of the Hamilton case, where the prosecution stayed an aggravated sexual assault charge in April. A gay man was charged in February 2009 after an ex-partner alleged they had oral sex without his disclosing that he had HIV. The charges were based on the accused’s performing oral sex, rather than receiving it.

The ex-partner has since been tested and is HIV-negative.

Elliott said in a statement:

“There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

***

In the Hamilton case, the name of the man who was accused is public, but, at his request, Xtra chooses not report it. In the Edmonton case, police declined to release the accused’s name. And in Vancouver, the judge ordered a publication ban on the accused’s identity.

In all three cases, the complainant’s identity cannot be disclosed by law, akin to the way the identities of rape victims are protected.

Police across the country often disclose the names of people accused of sexual assault for HIV-nondisclosure, which, among other things, outs them as HIV-positive.

The Edmonton case is unusual because, from the outset, the name of the accused has been kept under wraps.

The charge follows a March 31 police complaint by a woman claiming she slept with an Edmonton man who failed to disclose that he has HIV.

An RCMP spokesperson, Jodi Hei-denger, says the move has nothing to do with public disclosure of the health status of the accused, and everything to do with protecting the identity of the alleged victim.

“Releasing any details would without a doubt identify the victim. We are not releasing the name of the accused strictly to protect the identity of the victim,” says Heidenger.

Which could mean that the Vancouver case, where at trial the accused’s name is protected, could be more precedent-setting. The move, however, may have come too late, since the publication ban came only after the name had been bandied about in media reports and police press releases.

The Hamilton case, because it never went to trial, will likely have the least impact on jurisprudence.

The Vancouver case, with the spectre of a Supreme Court challenge hanging in the air, could be one of the most important in a decade.

Canadian HIV/AIDS Legal Network welcomes Crown decision to drop criminal charges in Hamilton HIV case: guidelines needed

Press Release
AIDS ORGANIZATION WELCOMES CROWN DECISION TO STAY CRIMINAL CHARGES IN HAMILTON HIV CASE
But guidelines needed to avoid unsound, unjust prosecutions

TORONTO, April 22, 2010

The Canadian HIV/AIDS Legal Network welcomed the announcement at Hamilton’s courthouse this morning that the prosecution is staying the criminal charge of aggravated sexual assault against Justus Zela. He was charged in February 2009 after an ex-partner alleged they had oral sex without Zela disclosing that he had HIV. The ex-partner has not tested HIV-positive.

“We’re pleased with the Crown’s announcement this morning, but it must go further. This case should never have proceeded in the first place, and the charges should be withdrawn entirely,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network. “There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

According to information available to the Legal Network, the charges were based solely on the claim that oral sex had taken place on a few occasions — and mostly with Mr. Zela performing oral sex, rather than receiving it.

“This case is yet another example of why the Attorney General of the province should work with community groups to develop some clear guidelines for prosecutors and police about when criminal charges are, and are not, warranted,” said Elliott. “Guidelines should be informed by the evidence about actual risks of transmission. They should also consider the damage that misusing the criminal law does to individual lives, and how it undermines public health, including HIV prevention efforts, through contributing to misinformation, fear and stigma.”

In 1998, the Supreme Court of Canada ruled that a person living with HIV has a duty to disclose his or her status to a sexual partner only if there is a “significant risk” of transmission, but much uncertainty remains about what this means.

Over the past decade, there has been an alarming increase in both the frequency and severity of charges against individuals with HIV for not disclosing their status to a sexual partner. Prosecutors have pursued serious assault charges even in circumstances where the risk of HIV transmission, already statistically small in any single sexual encounter, has been lowered further by the responsible practise of safer sex. In light of this “criminalization creep,” it is all the more urgent to address legitimate questions about where, as a matter of public policy, we should draw the lines.

Leading organizations and members of the HIV community — including health care providers, service providers, people living with HIV, academics and lawyers — have questioned the expansive use of the criminal law with respect to HIV non-disclosure in Canada. While recognizing that there is a limited role for criminal law on this issue, many legitimate concerns exist as to the impacts of this trend. Not only is studying, evaluating and critiquing the application of the criminal law appropriate, it is absolutely necessary to ensure it is used sensibly and fairly.

About the Canadian HIV/AIDS Legal Network
The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and human rights issues raised by HIV/AIDS.

“Criminal Law and HIV”
A series of 5 info sheets on-line at: www.aidslaw.ca/criminallaw

East Africa: Move Towards Common HIV/AIDS Law (IPS)

Another excellent piece from the Inter Press Service News Agency, whose mission is to give voices to the voiceless.

EAST AFRICA: Move Towards Common HIV/AIDS Law
by Wambi Michael

ARUSHA, Dec 4 (IPS) – All HIV-positive east Africans could soon access free anti-retroviral treatment even as they move freely from country to country, if a new proposed law comes into effect.The East African Community (EAC) is currently developing a law to guide the region’s response to HIV/AIDS.

This comes as the regional block moves towards an integration process that would see more citizens cross the boarders in the five states of Kenya, Uganda, Tanzania, Burundi, and Rwanda.

“With the signing of the protocol on customs union that will enable free movement of persons, you are actually going to see free movement of the virus because people will be interacting more easily as they transact business. The effect of that is that HIV must be seen regionally,” said Catherine Mumma, a Kenyan Human Rights Lawyer, who works with consultancy group Africa Vision Integrated Strategies. She led a consultation in the EAC states before the drafting of the new proposed law.

Based upon the consultations, the proposed law aims to provide joint treatment policies for people in the region while they move freely across the borders.

“One other thing is that east Africans would want a law that would enable them to access services anywhere they go in east Africa. So that if you were in Nairobi and you were on ARVs and you only brought two days ARVs and Kenya Airways went on strike, you should be able on the third day to walk into a treatment centre and get treated.”

The law will allow for a common stance on HIV/AIDS, which aims to be non-discriminatory. Currently some countries in the region criminalise the treatment of HIV-positive sex workers and gay men.

The presidents of the five member states agreed in November to commence the East Africa common market protocol, which beings in early in 2010. It will allow for the free movement of labour and trade across borders, similar to the Southern African Development Community trade agreement.

Lucy Ng’ang’a, the executive director for the Eastern African National Networks of AIDS Service Organisations (EANNASO) said the proposed law will take on the good parts of the existing laws in the region but also tackle some of the silent issues and make better the areas that are controversial.

For example, Kenya has as a law providing for the free treatment and counselling for HIV-positive people.

One of the controversial areas is the criminalisation of the transmission of HIV/AIDS being suggested by countries like Uganda.

Another controversial area is that in the Penal Codes of Kenya, Rwanda, Burundi and Tanzania prostitutes and gay men, who are considered high risk in HIV/AIDS transmission, are not allowed access to treatment.

Member states like Kenya, Tanzania and Burundi already have laws on HIV/AIDS.

Uganda’s law, the HIV/AIDS Control Bill 2009, was tabled before Parliament in 2008 as a Private Member’s Bill. It has already caused a public outcry because of a clause relating to the criminalisation of HIV transmission between adults.

EANNASO contracted consultancy group Africa Vision Integrated Strategies to study the existing HIV laws within the region and advise on a draft bill for an East African Law on HIV.

The report by the Kenyan-registered consultancy was presented at a regional consultative meeting held between December 3rd and 4th, 2009.

Participants at the meeting in Arusha voiced concern at provisions in the member states laws relating to the rights of People Living With HIV/AIDS and criminalisation of HIV transmission.

Mumma told IPS that most people consulted felt that the issue of wilful transmission of HIV/AIDS should be punishable, but not in the context of the HIV law. It should be dealt with separately because if it was included in the HIV law, it will stigmatise people who may use this law to seek protection and treatment, the East Africa Law Society said.

“HIV should be seen as any other diseases including hepatitis B. And it would better for it to be dealt with in the context of the penal code even if it meant drafting another clause in the penal code,” Mumma said.

Sarah Bonaya, a Kenyan Representative at East African Legislative Assembly and also a member of the General Purposes Committee in the parliament, said she was sure that her colleagues in the assembly would support the Bill which may be tabled as a Private Member’s Bill to the East African Assembly.

She was happy that consultations had gone on through the five states to ensure a harmonised law that would address some of the negative provisions within each member state law that would affect management of HIV/AIDS as a region.

The new proposed law on HIV/AIDS would be the second in Africa after the SADC HIV law adapted in November 2008. The SADC law provides a comprehensive framework for harmonisation of HIV and human rights in southern Africa.

Uganda: ‘Human rights will suffer’ under new HIV/AIDS law (update)

Update: December 3rd

The United Nations Special Envoy on AIDS in Africa, Elizabeth Mataka – and NGOs that include the Uganda Network on Law, Ethics and HIV/Aids (Uganet) and ActionAID – have added to the many voices urging Uganda to reconsider its proposed HIV and AIDS Prevention and Control Bill.

The Daily Monitor reports that Ms Mataka told journalists in Kampala yesterday:

“I emphasise the importance of creating a bigger and social environment conducive for HIV prevention and to refrain from laws that criminalise the transmission of HIV and stigmatise certain groups in the population. These laws can only fuel the epidemic further and undermine an effective response to HIV.”

Dorah Musinguzi, acting Executive Director of Uganet stated:

“We are cognisant of the fact that the draft Bill contains provisions that seek to address the HIV/AIDS pandemic but we need a law on the basis of which rights can be claimed and duties articulated in the context of HIV/AIDS. AIDS is no longer just a disease but a human rights issue. The law should be carefully crafted to find the right balance between promoting the public health while safeguarding and promoting human rights.

Original post: November 6th

A group of more than 50 Ugandan and international organizations and individuals have released a report criticising many of the provisions in the HIV and AIDS Prevention and Control Bill which is on its way to becoming law in Uganda.

A press release from Human Rights Watch (HRW) begins

The report criticizes repressive provisions in the legislation as contrary to the goal of universal access to HIV prevention, care, and treatment. The proposed law includes mandatory testing for HIV and forced disclosure of HIV status. It also criminalizes the willful transmission of HIV, the failure to “observe instructions on prevention and treatment,” and misleading statements on preventing or controlling HIV.

Worryingly, the latest version of the bill, released a few days ago, has now a added provision criminalising attempted transmission, which “further opens the door for abusive prosecutions”, HRW notes.

However “failure to inform one’s sexual partners of HIV status is no longer criminalised” along with the rather interesting provision that would have criminalised “failure to take reasonable steps and precautions to protect oneself from HIV transmission.”

Some might argue if criminalisation of HIV exposure or transmission remains in the Bill, why not allow for the prosecution of someone who does not protect oneself from HIV? That way, the law focuses on equal responsibility for HIV transmission/acquisition.

However, in a high prevalence country like Uganda (where an estimated 5.4% of the adult population is living with HIV) this would be unworkable, and would criminalise pretty much everyone who has unprotected sex, or at least is diagnosed HIV-positive – obviously a major backwards move, as this would remove any incentive for testing.

The HRW press release also focuses on the potential for criminalisation of HIV exposure and transmssion to disproportionately affect women, even though many lawmakers believe these laws protect them.

The report also highlighted how laws that criminalize HIV transmission can result in disproportionate prosecution of women because more women are tested as part of pre- or ante-natal medical care and therefore know their HIV status. Women’s inability to safely negotiate condom use or disclosure to partners who might have been the source of their infection is not recognized in the bill as defenses against criminal penalties. Women who transmit HIV to their infants after birth via breast milk would also be subject to criminal prosecution, the report says.

“Women and girls have been disproportionately affected by HIV/AIDS,” said Joseph Amon, health and human rights director at Human Rights Watch. “My fear is that mandatory testing and disclosure will lead to prosecution and violence instead of treatment and care.”

Last month a Ugandan MP introduced a separate Anti-Homosexuality Bill that would impose the death penalty on HIV-positive gay men in Uganda if they have sex with another man.

The proposals have been roundly criticised by pretty much every human rights and HIV organisation in the world.

Canada: Xtra publishes its anti-criminalisation piece-de-resistance

Just a week after Canada’s national gay paper, Xtra, published a radically anti-criminalisation interview on their website, Xtra.ca, comes their piece-de-resistance, Beyond the Courts: a smart, well-written and researched 5,000 word essay from queer Canadian writer/advocate Shawn Syms, whose previous writing on criminalisation and the HIV-positive/negative divide was equally insightful and thought-provoking.

In the piece – which will also be published in shorter form as the cover story of next month’s print edition of Toronto’s Xtra – Syms asks (and tries to answer) the question: How do we stop the spread of HIV without dividing our [unspoken HIV-positive versus HIV-negative and untested gay] communities?

Syms brings together many voices from Canada and abroad – including mine – to illustrate the “growing chorus of activists, civil-society advocates and community members [who are] rallying evidence to show that jailing people with HIV only quenches the individual and public thirst for retribution and blame—while failing to prevent onward HIV transmission.”

There’s much to recommend in the piece, but a few things stand out for me.

First, he turns the argument that the law protects HIV-negative people by punishing HIV-positive people for ‘victimising’ HIV-negative people on its head.

The media and police would have us believe that irresponsible people with HIV are out there victimizing others—but we should never forget that the reality is the other way around. People with HIV are an oppressed minority subject to frequent acts of discrimination by others who have power over them—including the accusers in criminalization cases.

Earlier in the piece, he explains how Canada’s criminalisation of HIV non-disclosure does this.

A vindictive person could use their knowledge of someone’s HIV status as a weapon against them. Many believe this is what happened last year in the case of “Diane,” a Montreal woman whose partner suddenly alleged she had not disclosed her HIV status once she pressed charges against him for domestic assault.

Some people with HIV have been threatened by people they’ve never even been intimate with. Fred Meikle of London, Ontario, says he had an exchange last year with an acquaintance in a gay.com online chatroom where the person stated, “I should call the police, tell them you didn’t disclose.” Meikle replied “We’ve never even had sex; you sat on my sofa and drank a beer.” He says the man replied, “Well, who do you think they will believe?”—highlighting the rift in social power between HIV-negative and positive gay men.

Understandably, this creates a climate of literal “terror” for people with HIV, says Angel Parks, Positive Youth Outreach coordinator for the AIDS Committee of Toronto (ACT). “This is spiraling out of control,” she says about the upswing in criminal charges. At a recent forum in Ottawa in June, she reports, people with HIV from across the country responded to the criminalization threat with “fear, shame, humiliation, and most of all confusion.” And at the weekly support group she coordinates, “individuals are scared… they don’t know to protect themselves” from the risk of bogus charges.

Now, Syms is not saying that all charges are bogus, but that the law as it had been created and is currently practised by the criminal justice system, is open to abuse. That relatively few cases have involved sex between men is irrelevent. It is the climate of fear and mistrust (on both sides) that worries him (and me).

He analyses this further later in the piece, when he rips apart the too-commonly-believed gay community myth that HIV only affects “hardcore risk takers” whose unbridled ‘barebacking’ turns them into “sexual predators.”

The common perception goes something like this. HIV is extremely dangerous, inevitably fatal and not that hard to get. People with HIV have an obligation to tell all partners before any sexual activity at all—because it’s not possible to consent to sex without knowing if the other person has HIV.

To this way of thinking, anyone who doesn’t disclose is dishonest, untrustworthy and probably addicted to barebacking—after all, if their sense of ethics and responsibility were not so obviously lacking, they wouldn’t have contracted the virus in the first place. And someone like that wouldn’t think twice about giving someone else HIV, on purpose. So the solution is to avoid these people, like the plague.

[…]

But gay men haven’t done a good job of passing on the harm-reduction message to new generations, says Richard Berkowitz, one of the originators of safe-sex education in 1983 and subject of the recent documentary Sex Positive. “Today, even progressive gay people fall into the trap of imagining that we are talking about sexual predators who deserve to be locked up.”

The perspective Berkowitz points out hinges upon seeing negative and positive gay men as fundamentally different from one another. This is a mistake, noted Sigma Research’s Ford Hickson in an address to a UK sexual health conference in March. What most often distinguishes positive and negative guys is not ethics or behaviour, but bad luck.

“HIV risk is widespread. It is not the case that a small group of hardcore risk takers account for the new infections,” said Hickson. “The transmissions that occur over the next year will be the unlucky ones in a large population each taking a few risks.”

Finally, he follows the lead of last week’s Xtra interviewee, Bob Watkin, the outgoing Chair of the HIV and AIDS Legal Clinic of Ontario (HALCO), asking readers to get “angry and loud.”

As Justice Cameron of South Africa told those assembled at the Canadian HIV/AIDS Legal Network’s recent symposium, “some of the Canadian cases are so outrageous, I have wondered why there weren’t protestors outside the courtroom with t-shirts and placards and activists shouting inside the court room. Have you lost your activist fervour?”

Cameron is right. We need to rekindle the queer rage and sense of injustice that fuelled historic LGBT protests, from the response to the bathhouse raids, to the efforts of Gay CourtWatch in the eighties to protect gay men busted on sex-related charges, to the beginnings of the original AIDS activist movement.

And we need a coalition of negative, positive and untested queers and allies to carry out this effort. Criminalization is an extreme manifestation of HIV stigma—and it shouldn’t be only people with HIV who put themselves on the line to fight it. With tools ranging from placard and megaphones to Facebook and Twitter, we need to combat the abuses of the police, the justice system and the media, and demand access to appropriate testing resources and consistent and high-quality sex education for all, regardless of HIV status.

Kudos to Syms, and to Xtra‘s editorial director, Matt Mills, for this piece: the best I’ve seen yet on the issue as it relates to gay men in Canada (and light years ahead of how New Zealand’s gay press is dealing with the issue).

Read the full piece on Xtra.ca.