Denmark’s new Minister of Justice Morten Bødskov is now taking formal steps to remove references to HIV from Article 252 of the Danish Penal Code which means that, for the time-being, HIV exposure and transmission is decriminalised.
That’s the good news. The not-so-good news is that the working group set up to examine whether or not there should be a new HIV-specific law is proposing new wording for a statute that would criminalise non-disclosure of known HIV-positive status, unless “suitable protection” is used for vaginal or anal intercourse.
Their recommendations will be considered during a consultation period which ends on 6 December 2011. Members of all branches of the criminal justice system are being consulted as well as HIV and human rights organisations.
The working group has produced a 20 page memo which states that the legal basis for the current statute no longer exists and, therefore, it should be repealed. They particularly emphasise the increased life expectancy for people on antiretroviral therapy (ART) and conclude that HIV is no longer “fatal” (although it is still “incurable”).
The lifespan of a well-treated HIV-infected individual does not differ from the age and gender-matched background population, and…timely treatment is now as effective and well tolerated (i.e, usually without significant side effects) so that an estimated 85-90 per cent of patients can live a normal life, as long as they adhere to their treatment on a daily basis.
It notes that using HIV as a weapon in terms of violent attacks with needles; rape; or sex with minors could still be an aggravating factor during sentencing under other, revelent criminal statutes. However, a 1994 Supreme Court ruling found that general criminal laws, such as those proscribing bodily harm or assault could not be applied to sexual HIV exposure or transmission.
The memo then presents arguments for and against a new statute. It argues that any new law should not proscribe ‘HIV exposure’, since it notes, the risks of HIV transmission on ART “are vanishingly small” and so it would be very difficult for any prosecutor to prove that someone was exposed to HIV under these circumstances.
They conclude that if a new statute were to replace Article 252 it should criminalise non-disclosure unless “suitable protection” is used. (This potentially leaves it open to argue that ART as well as condoms could be considered “suitable protection.”) Their suggested wording is
§ x. Whoever has a contagious, sexually transmissible infection which is incurable and requires lifelong treatment and has intercourse with a person without informing them of the infection, or using suitable protection, is punishable by a fine or imprisonment for up to 2 years.
They note, however, that since the harm of HIV is reduced due to the impact of ART that the current maximum sentence of 8 years in prison should be reduced to 2 years and “the normal penalty should be a fine or a short (suspended) term of imprisonment.”
Although they are not necessarily recommending this new statute, the working group warns that “decriminalisation…may have unintended, negative consequences” and that public health and community based HIV organisations alike should ensure that health education about HIV and how to avoid it continues unabated because “it is important to send the message that HIV is still a disease that must be taken seriously.”
US: Positive Justice Project Members Endorse REPEAL HIV Discrimination Act
New York, September 23, 2011 – Members of the Positive Justice Project, a national coalition dedicated to ending the targeting of people with HIV for unreasonable criminal prosecution, voiced their support for the REPEAL HIV Discrimination Act that Congresswoman Barbara Lee (D-CA) introduced today.
The bill calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It is the first piece of federal legislation to take on the issue of HIV criminalization, and provides incentives for states to reconsider laws and practices that unfairly target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission.
The proposed bill is being met with widespread support. Ronald Johnson, Vice President for Policy and Advocacy at AIDS United (a Positive Justice Project member) says, “AIDS United supports the REPEAL HIV Discrimination Act. It’s long past time for a review of these criminal and civil commitment laws and we welcome Representative Barbara Lee’s efforts to help local and state officials understand and make needed reforms.”
Thirty-four states and two U.S. territories now have laws that make exposure or non-disclosure of HIV a crime. Sentences imposed on people convicted of HIV-specific offenses can range from 10-30 years and may include sex offender registration even in the absence of intent to transmit HIV or actual transmission. Though condom use significantly reduces the risk of HIV transmission, most HIV-specific laws do not consider condom use a mitigating factor or as evidence that the person did not intend to transmit HIV.
For example, a man with HIV in Iowa received a 25-year sentence for a one-time sexual encounter during which he used a condom and HIV was not transmitted; although the sentence was eventually suspended, he still was required to register as a sex offender and is barred from unsupervised contact with children. People also have been convicted for acts that cannot transmit HIV, such as a man with HIV in Texas who currently is serving 35 years for spitting at a police officer.
“The Repeal HIV Discrimination Act relies on science and public health, rather than punishment, as the lead response to HIV exposure and transmission incidents. It embodies the courage and leadership needed to replace expensive, pointless and punitive reactions to the complex challenge of HIV with approaches that can truly reduce transmission and stigma,” remarked Catherine Hanssens, Executive Director of the Center for HIV Law and Policy and a founder of the Positive Justice Project
Representative Lee’s bill requires designated officials to develop a set of best practices, and accompanying guidance, for states to address the treatment of HIV in criminal and civil commitment cases. The bill also will provide financial support to states that undertake education, reform and implementation efforts. A fact sheet created by The Center for HIV Law and Policy, AIDS United, Lambda Legal and the ACLU AIDS Project summarizes the problems with HIV criminalization and the measures the REPEAL HIV Discrimination Act takes to address them.
“The REPEAL HIV Discrimination Act will serve a critical role in educating Members of Congress and the public about the harmful and discriminatory practice of criminalizing HIV. Such state laws often originated during times when fear and ignorance over HIV transmission were widespread, and serve to stigmatize those who are living with HIV. Our criminal laws should not be rooted in outdated myths. Rep. Lee is to be commended for her tireless leadership on behalf of those who are living with HIV/AIDS,” said Laura W. Murphy, director of the ACLU Washington Legislative Office.
Scott Schoettes, HIV Project Director at Lambda Legal summarized the support of many. “Lambda Legal wholeheartedly supports the ‘REPEAL HIV Discrimination Act.’ It is high time the nation’s HIV criminalization laws were reformed to reflect the modern reality of living with HIV, both from medical and social perspectives. Except for perhaps the most extreme cases, the criminal law is far too blunt an instrument to address the subtle dynamics of HIV disclosure.”
Other PJP member statements in support of the REPEAL HIV Discrimination Act:
“The HIV Prevention Justice Alliance expresses our strong commitment to HIV decriminalization and ongoing support for Representative Barbara Lee’s Repeal HIV Discrimination Bill. We have seen how the criminalization of HIV has increased instead of reduced HIV stigma and panic. We have also seen how the criminalization of HIV further targets communities – black, Latino/a, queer, transgender, low income, sex worker, homeless, drug user – which are already disproportionately impacted by HIV/AIDS and mass incarceration. We applaud Congresswoman Lee’s courageous effort to support resiliency and dignity of HIV positive people and loved ones and affirm her continued support for prevention justice and decriminalization.”
—Che Gossett, Steering Committee Member, HIV Prevention Justice Alliance
“This is definitive legislation in the national fight to end HIV discrimination and for survivors of criminalization.”
—Robert Suttle, Member of Louisiana AIDS Advocacy Network (LAAN)
“A Brave New Day is in full support of Rep. Barbara Lee’s Anti-Criminalization bill.”
—Robin Webb, Executive Director of A Brave New Day
“We feel strongly that many such statutes violate human rights, are constitutionally vague, are irrational, and violate the laws of science in that they attempt to characterize known scientifically proven facts about transmission as irrelevant to the issue of potential damage and danger. We feel that people’s ‘fear’ if irrational cannot provide a basis for a criminal statute or prosecution under same and that a statute cannot be both legal and illogical.”
—David Scondras, Founder/CEO, Search For A Cure
For a list of organizations supporting the REPEAL HIV Discrimination Act, click here.
This short film produced by The International Planned Parenthood Federation is a commentary from a selection of experts about the criminalisation of HIV transmission in England and Wales. It brings together a selection of policy makers, programmers, advocates, academics and people living with HIV to inform the public debate.
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:Denmarkexportsstigma AIDSFoundation Politiken8thJune 2011,Culture,page6 INTERNATIONALCOMMENTARY: DanishHIV–lawisinconflictwith theUN 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: (Update) Nebraska passes unscientific, stigmatising body fluid assault law
I’ve just learned via my colleagues at the Positive Justice Project in the US, that The Assault with Bodily Fluids Bill (LB226) introduced into the Nebraska State Legislature by Senator Mike Gloor recently passed into law with no amendments.
“The entire bill is hinged on gross ignorance about the actual routes and risks of HIV transmission,” says Beirne Roose-Snyder, staff attorney for the Center for HIV Law and Policy in New York City. “Nowhere in the nearly three-decades-long history of the epidemic has a corrections officer been infected by the routes described in the bill. As for serious misinformation, there is real harm caused to law enforcement staff who themselves may be living with HIV, and to those who are not but who are being sold an unsound bill of goods on how to protect themselves, by placing a legislative imprimatur on the unfounded fears about how HIV and other diseases are spread. It also clearly has a negative impact on the way people with HIV are treated in and out of the criminal justice system, and has resulted in people serving decades of time behind bars on the basis of ignorance and hysteria.”
This latest development is extremely disappointing, and suggests that the trend of passing new laws that inappropriately criminalise people with HIV (and, sometimes other blood-borne infections such as hepatitis B or C) in a misguided attempted to protect police or other public safety officers is not reversing.
This Friday, February 4th, the Nebraska State Legislature will debate The Assault with Bodily Fluids Bill which would criminalise striking any public safety officer with any bodily fluid (or expelling bodily fluids toward them) and includes a specific increase of penalty to a felony (up to five years and/or $10,000 fine) if the defendant is HIV-positive and/or has Hepatitis B or C.
The Bill ignores the fact that HIV cannot be transmitted through spit, urine, vomit, or mucus; punishes the decision to get tested for HIV; and will not keep public safety officers safer, but rather will reinforce misinformation and stigma about HIV.
2. Codifying the breach of doctor /patient confidentiality in Sec. 2(5) is extremely serious, and should not be undertaken with no public health benefit
It is extremely important for public and individual health for people with HIV to get tested at the earliest opportunity, start timely treatment, and stay on treatment. This all hinges on having a good relationship with their doctor or health care provider. Forcing doctors and health care providers to reveal private health information, or even testify about it, will have a negative impact on patient trust of the health care system and willingness to remain engaged in HIV care. The plain language in Sec. 2(5) would force any person charged under this statute to be tested for the identified viruses, or force the opening of their medical records for previous testing results.
The Positive Justice Project (PJP) has produced a set of talking points (download here) that summarises the problems with the Bill, and with HIV-specific legislation in general. PJP highlights that the wording of the Bill is so broad that it would allow for the following Kafkaesque situations:
If a person with HIV accidentally vomits in the direction of a medical officer in a prison infirmary, they could be sentenced to five more years in prison.
If someone accidentally sneezes in the direction of a police officer, a judge must grant a court order for their medical records and they may be subjected to involuntary HIV antibody and hepatitis B and C antigen testing if the police officer decides to press charges.
An inmate who spits or vomits in the direction of a corrections officer, even without hitting or intending to hit the officer, can be forcibly tested for HIV and hepatitis and if found to have any of these viruses, charged with a felony.
An adolescent with HIV or hepatitis held in a juvenile detention facility who spits while being restrained by a corrections officer, or while arguing with a guidance counselor, could wind up serving five years in an adult prison facility.
PJP asks anyone in the United States who cares about this issue to contact their State representative (using the talking points to highlight the many problems with the Bill) and specifically encourages any networks or individuals in Nebraska to contact:
State Senator Mike Gloor, who introduced the Bill. District 35 Room #1523 P.O. Box 94604 Lincoln, NE 68509 Phone: (402) 471-2617 Email: mgloor@leg.ne.gov
Sandra Klocke State AIDS Director Office of Disease Control and Health Promotion Nebraska Department Health and Human Services 301 Centennial Mall South, 3rd Floor P.O. Box 95026 Lincoln, Nebraska, 68509-5044 Phone: 402-471-9098- Fax: 402-471-6446 sandy.klocke@nebraska.gov
and/or
Heather Younger State Prevention Manager Disease Prevention and Health Promotion HIV Prevention Nebraska Department of Health and Human Services 301 Centennial Mall South Lincoln, Nebraska, 68509 Phone: 402-471-0362 heather.younger@nebraska.gov
Denmark: (Updated) 122 NGOs endorse civil society letter congratulating Government’s suspension of HIV-specific law, asking for its abolition
Update May 31st: A total of 122 civil society organisations from around the world have signed the letter which was delivered to the Danish Minister of Justice and the Danish Minister of Health in mid-May. Thank you to everyone who signed!
They are asking the Government to consider only making intentional transmission of a serious communicable disease a criminal offence, as recommended by UNAIDS, and to focus instead on supporting people with HIV (diagnosed and, even more importantly for public health, undiagnosed) to access comprehensive prevention, counselling, testing, treatment, care and support services.
What happens in Denmark could have a profound effect on policy, not only in neighbouring Nordic countries – where law reform and other HIV criminalisation policy discussions are also taking place this year – but all around the world.
To parapahrase South Africa’s Justice Edwin Cameron, who argued in his excellent 2009 article for Norwegian newspaper, Dagbladet, “that by applying its own discriminatory legislation, Norway in effect exports stigma,” by abolishing its own HIV-specific law, Denmark in effect would lead the world by exporting rational, public health-based policy.
Full text of the introductory remarks and sign-on letter from AIDS-Fondet (Danish AIDS Foundation) is below. Please sign before 29th April 2011 by emailing laura@aidsfondet.dk (and include the NAME OF YOUR ORGANISATION and COUNTRY) and distribute to your networks locally, nationally and globally.
Dear non-governmental and community-based organisations, national and regional networks working on HIV and AIDS,
We would like to share with you the good news that last month the Danish Justice Minister suspended Article 252 of the Danish Penal Code used to prosecute people living with HIV for ‘wanton or reckless’ exposure or transmission of HIV. This is the only criminal statute in Western Europe that singles out HIV as “a fatal and incurable disease.”
The law is undergoing revision and a working group is currently considering whether to amend, or totally rewrite, Article 252.
To help this process along, the Danish AIDS Foundation is seeking your endorsement of a letter (see below in bold and/or download here) to the Danish Minister of Justice and the Danish Minister of Health who are leading the working group comprising representatives from the Ministry of Interior, Ministry of Health, the National Board of Health and the Prosecutor General.
By signing, you help:
in congratulating the Ministers on their recent decision to suspend the Danish Penal Code that criminalises HIV exposure and transmission
to ensure that during the revision process the Danish Government takes into due consideration whether the particular section singling out HIV should exist in the Penal Code at all.
It is our hope that a successful revision of the Danish Penal Code will allow for other countries to follow suit.
If your organization wishes to endorse the letter below, please send an email to laura@aidsfondet.dk and include the NAME OF YOUR ORGANISATION and COUNTRY before 29th April 2011.
Your help is very much appreciated!
Dear Minister of Justice, Mr. Lars Barfoed and Minister of Health, Mr. Bertel Haarder
We, the undersigned, non-governmental and community-based organisations, national and regional networks working on HIV and AIDS congratulate you on your wise decision to suspend section 252 (2) and (3) of the Danish Penal Code on HIV and AIDS.
The remarkable progress in treatment options for people living with HIV that allows for the possibility of a normal life expectancy, and greatly reduces the possibility of exposing others to HIV is certainly a good reason to reconsider the law on HIV and AIDS.
However, in your important work on the revision of the Danish law, we strongly urge you to consider whether the particular section in the Penal Code that relates specifically to HIV exposure or transmission should exist at all. HIV exposure or transmission should not be singled out for special consideration as a criminal offence but should be treated in the same manner as other serious communicable diseases.
Punitive laws on HIV and AIDS undercut basic HIV prevention and sexual health messages and are ineffective in reducing the spread of HIV. Since HIV mainly spreads from persons not aware of their HIV status, such laws only fuel ignorance, fear, stigma and discrimination against people aware they are living with the virus. We strongly believe such laws are counterproductive since they lessen the likelihood that individuals will learn their HIV status and access treatment.
In our opinion, consistent with rational, public health-based policy, only intentional transmission of a serious communicable disease should be criminalised. In addition, we strongly suggest that the Danish Government support efforts that emphasise shared responsibility for HIV prevention and the importance of providing comprehensive prevention and care services for people living with HIV to help reduce the risk of transmission to others.
Yours sincerely,
US: Coalition of Public Health and Legal Experts Urges Rational Response to Prosecution of People Living with HIV
(New York, April 27, 2011) — The Positive Justice Project, a coalition of legal and public health experts that represent people living with HIV, is speaking out against sensationalist media coverage of criminal charges that have been brought against an HIV-positive African American man in Buffalo.
Darryl Fortner, 20, who has no prior criminal record, has been charged with reckless endangerment for allegedly failing to disclose his HIV status to his sexual partners.
The Positive Justice Project urges journalists to consider the following in their coverage.
A wide range of health and human rights organizations, including the United Nations High Commissioner for Human Rights, have condemned the criminal prosecution of people living with HIV for not disclosing their status. While these prosecutions often seem to protect the public health, they actually undermine public health initiatives by discouraging testing and fueling stigma. They also put HIV-positive people at high risk of unjust prosecution. President Obama’s own National HIV/AIDS Strategy, released in 2010, questions the efficacy of such laws and calls for a comprehensive review of them.
“Rushing to judgment and demonizing a young black man on the basis of his HIV status has a horrible impact not only on people who already are diagnosed with HIV, but on all of those in my community who are afraid to get tested,” said Kali Lindsey, a public policy expert at Harlem United and a person living with HIV. “No one is going to get tested for HIV if they think that knowing their status will land them in jail.”
Fortner’s arrest is one in a long line of cases across the country where HIV-positive persons, often African American, are facing criminal charges and disproportionately long sentences for otherwise-legal behavior on the basis of their HIV status. Intent to transmit or intent to expose others to HIV is rarely–if ever–a consideration in these cases, which typically turn into a credibility battle in which the person who has first discovered he or she is HIV positive is assumed to be dishonest.
On Wednesday, April 20, Fortner was charged with one count of reckless endangerment for allegedly not disclosing his HIV status prior to engaging in sexual conduct. [He now faces four reckless endangerment charges.]
Journalists should keep in mind that to be charged under reckless endangerment in New York, one must have presented a “grave risk of death” to another person. HIV is no longer considered a death sentence, but rather a chronic disease.
“These laws and prosecutions continue to occur because people incorrectly believe that HIV is quickly and invariably fatal and as such should be treated differently than other sexually transmitted infections,” said Vanessa Johnson, Deputy Executive Director of the National Association of People with AIDS. “That’s just not the case. And until legislators, law enforcement officials, and prosecutors understand HIV in the 21st-century, these miscarriages of justice will continue to happen all over the country.”
### **** 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.
The POSITIVE JUSTICE PROJECT has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the Henry van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the POSITIVE JUSTICE PROJECT working groups, email: pjp@hivlawandpolicy.org
UNAIDS announces new project examining “best available scientific evidence to inform the criminal law”
A new project announced yesterday by UNAIDS will “further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health.”
I’m honoured to be working as a consultant on this project, and although I can’t currently reveal any more details than in the UNAIDS article (full text below), suffice to say it is hoped that this project will make a huge difference to the way that lawmakers, law enforcement and the criminal courts treat people with HIV accused of non-disclosure, alleged exposure and non-intentional transmission.
The UNAIDS article begins by noting some positive developments previously highlighted on my blog, including Denmark’s suspension of its HIV-specific law. It’s not too late to sign on to the civil society letter asking the Danish Government to not to simply rework the law, but to abolish it altogether by avoiding singling out HIV. So far, well over 100 NGOs from around the world have signed the letter.
The article also mentions recent developments in Norway. In fact, the UNAIDS project is funded by the Government of Norway, which has set up its own independent commission to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people who are alleged to have exposed others, to, and/or transmitted, HIV. It will present its findings by October 2012.
As well as highlighting some very positive recent developments in the United States – the National AIDS Strategy’s calls for HIV-specific criminal statutes that “are consistent with current knowledge of HIV transmission and support public health approaches” and the recent endorsement of these calls by the National Alliance of State and Territorial AIDS Directors (NASTAD) – it also focuses on three countries in Africa.
Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.
I’d like to add a few more countries to the “positive development” list.
We believe that the use of criminal law in cases of HIV non-disclosure must be compatible with broader scientific, medical, public health, and community efforts to prevent the spread of HIV and to provide care treatment and support to people living with HIV. While criminal prosecutions may be warranted in some circumstances, we view the current expansive use of criminal law with concern.
We therefore call on Ontario’s Attorney General to immediately undertake a process to develop guidelines for criminal prosecutors in cases involving allegations of non-disclosure of HIV status.
Guidelines are needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner. The guidelines must ensure that decisions to investigate and prosecute such cases are informed by a complete and accurate understanding of current medical and scientific research about HIV and take into account the social contexts of living with HIV.
We call on Ontario’s Attorney General to ensure that people living with HIV, communities affected by HIV, legal, public health and scientific experts, health care providers, and AIDS service organizations are meaningfully involved in the process to develop such guidelines.
As well as providing an extensive and detailed overview regarding the current (and past) use of criminal and public health laws in its eight states and territories, it also provides the latest data on number, scope and demographics of prosecutions in Australia.
There have been 31 prosecutions related to HIV exposure or transmission in Australia over almost twenty years. Of those, a number have been dropped pre-trial, and in four cases the accused has pleaded guilty. All those charged were male, except for one of two sex workers (against whom charges were dropped pretrial in 1991). In cases where the gender of the victim(s) is/are known, 16 have involved the accused having sex with female persons (one of those cases involves assault against minors) and 10 involved the accused having sex with men. This suggests that heterosexual men, who constitute only about 15% of people diagnosed with HIV, are over-represented among the small number of people charged with offences relating to HIV transmission. Further, men of African origin are over-represented among those prosecuted (7 of 30), given the small size of the African-Australian community.
It then systematically examines, in great detail, the impact of such prosections in Australia.
These include:
HIV-related prosecutions negate public health mutual responsibility messages
HIV-related prosecutions fail to fully consider the intersection of risk and harm
HIV-related prosecutions ignore the reality that failure to disclose HIVstatus is not extraordinary
HIV-related prosecutions reduce trust in healthcare practitioners
HIV-related prosecutions increase stigma against people living with HIV
HIV-related prosecutions are unacceptably arbitrary
HIV-related prosecutions do not decrease HIV transmission risks
HIV-related prosecutions that result in custodial sentences increase the population of HIV-positive people in custodial settings
It notes, however, that
There is a narrow category of circumstances in which prosecutions may be warranted, involving deliberate and malicious conduct, where a person with knowledge of their HIVstatus engages in deceptive conduct that leads to HIV being transmitted to a sexual partner. A strong, cohesive HIV response need not preclude HIV-related prosecutions per se. Further work is required by those working in the areas of HIV and of criminal law:
To consider what circumstances of HIV transmission should be defined as criminal;
To define what measures need to be put in place to ensure that prosecutions are a last resort option and that public health management options have been considered; and
To ensure those understandings are part of an ongoing dialogue that informs the development of an appropriate criminal law and public health response.
That’s exactly the kind of policy outcome that UNAIDS is hoping for.
In the meantime, AFAO suggests some possible strategies towards policy reform. Their recommendations make an excellent advocacy roadmap for anyone working to end the inappropriate use of the criminal law.
Their suggestions include:
Enable detailed discussion and policy development
Develop mechanisms to learn more about individual cases
Prioritise research on the intersection of public health and criminal law mechanism, including addressing over-representation of African-born accused
Work with police, justice agencies, state-based agencies and public health officials
Improve judges’ understanding of HIV and work with expert witnesses
Work with correctional authorities
Work with media
I truly hope that the recent gains by advocates in Australia, Canada, Denmark, Guinea, Norway, Togo, Senegal and the United States is the beginning of the end of the overly broad use of the criminal law to inappropriately regulate, control, criminalise and stigmatise people with HIV in the name of justice or public health.
The full UNAIDS article is below. I’ll update you on the project’s progress just as soon as I can.
Countries questioning laws that criminalize HIV transmission and exposure
26 April 2011
On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.
A working group has been established by the Danish government to consider whether the law should be revised or abolished based on the best available scientific evidence relating to HIV and its transmission.
This development in Denmark is not an exception. Last year, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people transmitting HIV.
In the United States, the country with the highest total number of reported prosecutions for HIV transmission or exposure, the National AIDS Strategy adopted in July 2010 also raised concerns about HIV-specific laws that criminalize HIV transmission or exposure. Some 34 states and 2 territories in the US have such laws. They have resulted in high prison sentences for HIV-positive people being convicted of “exposing” someone to HIV after spitting on or biting them, two forms of behaviour that carry virtually no risk of transmission.
In February 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD), the organization representing public health officials that administer state and territorial HIV programmes, expressed concerns about the “corrosive impact” of overly-broad laws criminalizing HIV transmission and exposure. The AIDS Directors called for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.
Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV. Best available scientific evidence to inform the criminal law
These developments indicate that governments are also calling for a better understanding of risk, harm and proof in relation to HIV transmission, particularly in light of scientific and medical evidence that the infectiousness of people receiving anti-retroviral treatment can be significantly reduced.
To assist countries in the just application of criminal law in the context of HIV, UNAIDS has initiated a project to further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health. The project, with support from the Government of Norway, will focus on high income countries where the highest number of prosecutions for HIV infection or exposure has been reported.
The initiative will consist of two expert meetings to review scientific, medical, legal and human rights issues related to the criminalization of HIV transmission or exposure. An international consultation on the criminalization of HIV transmission and exposure in high income countries will also be organized.
The project will further elaborate on the principles set forth in the Policy brief on the criminalization of HIV transmission issued by UNAIDS and UNDP in 2008. Its findings will be submitted to the UNDP-led Global Commission on HIV and the Law, which was launched by UNDP and UNAIDS in June 2010.
As with any law reform related to HIV, UNAIDS urges governments to engage in reform initiatives which ensure the involvement of all those affected by such laws, including people living with HIV.
US: State public health officials condemn ‘stigmatising, harmful’ HIV-specific laws
NASTAD is a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US.
Its motto is: ‘Bridging Science, Policy, and Public Health’.
The message of their statement is simple: repeal these laws because
HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV.
In order to work towards the goal of repealing laws that create HIV-specific crimes or increased penalties for persons who are HIV-positive and convicted of criminal offences, NASTAD will
advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.
Further, NASTAD encourages its members to:
Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.
Todd Heywood of the Michigan Messenger reports that US HIV advocates – including the National Association of People with AIDS (NAPWA) and the Positive Justice Project’s Senior Advisor, Sean Strub – have warmly welcomed NASTAD’s statement. Read his report at the Michigan Messenger here.
NATIONAL HIV/AIDS STRATEGY IMPERATIVE: FIGHTING STIGMA AND DISCRIMINATION BY REPEALING HIV-SPECIFIC CRIMINAL STATUTES
The National Alliance of State and Territorial AIDS Directors (NASTAD), the organization which represents the public health officials that administer state and territorial HIV/AIDS and adult viral hepatitis prevention and care programs nationwide is gravely concerned about the corrosive impact of sustained stigma and discrimination on state, federal and local efforts to combat HIV/AIDS in the United States. The National HIV/AIDS Strategy (NHAS) provides an unprecedented strategic blueprint for reducing HIV/AIDS incidence through the scale-up of interdisciplinary, impactful prevention approaches. NASTAD acknowledges that the NHAS is not a magic bullet; however, the NHAS’ central vision of the U.S. becoming “a place where new HIV infections are rare” cannot be realized until the nation aggressively responds to the core of the matter: pervasive and unmitigated stigma and discrimination against people living HIV/AIDS that diminishes our best efforts to combat one of the greatest public health challenges of our time.
As a member of the Positive Justice Project, a coordinated national effort to address “HIV criminalization” statutes – laws that create HIV-specific crimes or which increase penalties for persons who are HIV positive and convicted of criminal offenses – NASTAD supports efforts to examine and support level-headed, proven public health approaches that end punitive laws that single out HIV over other STDs and that impose penalties for alleged nondisclosure, exposure and transmission that are severely disproportionate to any actual resulting harm. Steps identified to reach this goal in the Federal Implementation Plan include step 3.3, Promote public health approaches to HIV prevention and care which states that “state legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to screening for, preventing and treating HIV.” In addition, step 3.4, Strengthen enforcement of civil rights laws requires an examination and report by the Department of Justice on HIV-specific sentencing laws and implications for people living with HIV.
HIV criminalization has often resulted in egregious human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty- four states (34) and two (2) U.S. territories explicitly criminalize HIV exposure through sex, shared needles or, in some states, exposure to “bodily fluids” that can include saliva. Examples include:
A man with HIV in Arkansas was sentenced to 12 years (and must register as a sex offender after release) when he failed to disclose his status with his girlfriend and another woman – both women tested negative;
A man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom;
A woman with HIV in Georgia, who was sentenced to eight years imprisonment for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV positive status.
In none of the cases cited was HIV transmitted. In fact, most prosecutions are not for transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing stories about verbal consent that are nearly impossible to prove.
HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV. NASTAD members commit to examining existing public health policies related to HIV criminalization that may exacerbate stigma and discrimination and lessen the likelihood that individuals will learn their HIV status. NASTAD members will also continue to emphasize the importance of providing comprehensive prevention and care services for HIV positive individuals to help reduce the risk of transmission to others. In conjunction with new and existing partners, our members also pledge to:
Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.
NASTAD will continue to advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.
Approved by NASTAD’s Executive Committee: February 2011
Denmark: Justice Minister suspends HIV-specific criminal law, sets up working group
Denmark’s Justice Minister Lars Barfoed has today suspended Article 252 of the Criminal Code – the so-called ‘HIV law’ – pending an inquiry by a government working group to consider whether the only HIV-specific law in Western Europe should be revised or abolished.
The move was announced today in a press release by AIDS-Fondet (AIDS Foundation) and covered in the gay magazine, Out and About. (Both of these are in Danish, and so I’m relying primarily on Google Translate, although colleagues in Denmark have also been in touch to tell me the exciting news.)
Denmark prosecuted its first case in 1993, but the Supreme Court found in 1994 that the wording of the existing law (“wantonly or recklessly endangering life or physical ability”) did not provide a clear legal base for conviction. The phrase “fatal and incurable disease” was added in 1994, and HIV was specified in 2001.
According GNP+’s Global Criminalisation Scan here have been at least 18 prosecutions: at least one failed due to the accused committing suicide. At least ten involved non-Danish nationals, including seven people of African origin. At least eleven convictions for either sexual HIV exposure or transmission are reported. The maximum prison sentence is eight years.
Today’s announcement came about as a result of a Parliamentary question from opposition Unity MP, Per Clausen on behalf of the Parliamentary Legal Committee.
“The Minister should state whether the Ministry [of Justice] will consider changing or eliminating the special clause in the legislation that criminalises [HIV-positive individuals for] unprotected sex with uninfected [individuals] in light of the significantly improved treatment options for HIV-positive people, in particular since treatment is able to reduce the risk of infection to [near] zero.”
In his reply, Justice Minister Lars Barfoed explains the history of the legislation and then quotes the Health Protection Agency about HIV ‘risk’ and ‘harm’.
“Modern combination therapy reduces HIV in the blood by more than 99% during the first weeks of treatment, whereby patients’ general condition improves. The strongly reduced amount of HIV in blood and tissue fluids also greatly reduces the risk of transmission from an HIV-positive person on antiviral therapy. This greatly reduced risk is difficult to quantify but considering the risk to be near zero is a theory that some doctors have put forward, but there is no national or international consensus that about this…The life-expectancy of someone with HIV is no different from the age- and gender-matched background population. HIV is, in other words, not in itself fatal if treated in time; medication taken regularly; and there are otherwise no complications from other diseases, etc. Timely treatment is now so effective and well tolerated, that 85-90% of patients can live normal lives if they take their medication daily. It is the 5-10% of patients who are diagnosed late who still experience a substantial excess mortality and morbidity. [However] HIV is still incurable.”
He goes on to say that the law as it is currently written – casting HIV as a life-threatening condition and criminalising unprotected sex by a person with HIV – appears to be obsolete and that the working group must consider whether to amend, or totally rewrite, Article 252.
The working group will comprise Justice Minister Barfoed and Interior Affairs and Health Minister Bertel Haarder with representatives from the Ministry of Interior, Ministry of Health, the Health Protection Agency and the Prosecutor General. It is believed they will come to a conclusion later this year. (Update Feb 22: My contact at AIDS-Fondet tells me this process will take place much sooner, within the next two months.)
In their press release AIDS-Fondet notes that it has been working on changing the law for years and so this development is very welcome.
We hope this suspension is the beginning of the end of the so-called HIV Criminal Law. This criminal provision is in itself a barrier to prevention, and there has also long been a need for the improved treatment of HIV-people to be reflected in the Penal Code, says Henriette Laursen, AIDS-Fondet’s director.
You can select your preferred language from the 'Select Language' menu at the top of the page.
Continue
We use cookies to ensure that we give you the best experience on our website. By continuing to use our site, you are agreeing to our use of cookies. You can change your cookie settings at any time if you want. Find out more in our Privacy & Cookie Policy.
