Global: Powerful personal testimony and video highlight criminalisation concerns

IPPF (the International Planned Parenthood Association) has been campaigning against the criminalisation of HIV non-disclosure, alleged exposure and non-intentional transmission for the past few years, and this World AIDS Day they are highlighting their ‘Criminalise Hate Not HIV’ Campaign.

They have produced a beautifully shot two minute video highlighting their ongoing campaign, which you can watch below.

IPPF has also just launched Behind Bars – a collection of interviews that highlights the effect criminal laws are having on people’s working and private lives. I was particularly struck by two testimonials from individuals with whom I have had some prior contact.

Jan Albert is a Professor of Infectious Diseases and has worked at the Swedish Institute for Infectious Disease Control (SMI). Currently he works as an HIV researcher at the Karolinska Institute. He has been an expert witness in several trials; served as the expert reviewer for the ‘Proof’ chapter of NAM’s HIV and the criminal law; and contributed to my recent news story on phylogenetic analysis. He was forced to do an about-turn in 2008 regarding the SMI helping police with their criminal investigations.

Here’s an exerpts of what he says in Behind Bars

Since I’ve been an expert witness in court trials, my personal opinion regarding people living with HIV (PLHIV) has changed. In my experience the accused persons are seldom ‘raw criminals’.  Instead, they are people who have been careless or even reckless. There  are many reasons for neglecting to inform sexual partners about HIV status, including denial. None, or very few, have had the intent to transmit HIV which is how these acts often are described by the media….I’ve seen prejudice in the media reporting of these cases, but that’s  how the media works and I have learnt how to deal with it. They often  want the sensational and spectacular news, especially tabloids. I wished  there was place in the media for a more nuanced view; sometimes we see  it, but not very often…Do we want to turn a proportion of our population into potential criminals every time they have sex?

Marama Pala from New Zealand also tells her story on Behind Bars.  She had actually emailed me more than a year ago wanting to tell her story on my blog, and I was happy for her to do so.  I prepared a version of her email for her approval but never heard back (I had especially wanted to know how to credit her – using her real name or a psedunoym).  Now that IPPF have published her name and story, I’d like to post what she wrote for me, which is similar, but a little more detailed.

Marama Pala was the key witness for the prosecution when Kenyan musician Peter Mwai was prosecuted for criminal HIV transmission in 1993.  Now an advocate for Māori living with HIV, she writes about her experiences and lessons learned exclusively for this blog.


I was 22 years old when I had a sexual liaison with Peter Mwai that changed my life forever (23 July 1993). It was six weeks later that I saw a picture of his face on the front of a national newspaper with the caption, “Face of Fear”.  The article encouraged anyone that had contact with Peter Mwai to ring a detective in the New Zealand police. The detective asked, if I received a HIV-positive blood test would I help stop him from infecting other women? Not knowing what I was volunteering for, I said yes. The trial took over two years.

This was the first time that legislation written in 1963 was put to the test with charging someone with ‘wilfully infecting someone with a disease’ (maximum sentence 14 years). It was when the prosecution was unable to prove beyond a doubt that Peter Mwai was deliberately infecting people that charge was lessened to Grievous Bodily Harm (maximum sentence 7 years).

It was alleged that Peter Mwai infected an array of women before June 1993, and after six women – negative and positive – came forward and spoke to the police, they were able to charge him with reckless endangerment. I was the only one they could find who was infected after June – the date where the prosecution were able to provide evidence that he had knowledge of his HIV status. I’ve met 9 women infected by Peter Mwai.  It is presumed there are many more.

I had the condoms available, and during negotiating for safe sex, I was told that he was negative, he had a healthy child, he was healthy and why would he need to wear one and they hurt…  I trusted him. Bear in mind that 1993, negotiating for safe sex as a woman in New Zealand was almost non-existent, safe sex education was non-existent, and the only reason I had the condoms was because a friend had given them to me.

The court trial began. There was no doubt in my mind, should he be released back in to New Zealand society, that he would continue with his promiscuity, putting others at risk. He was found guilty.  He served five years in prison, was deported on release, and shortly after died in Uganda of TB.


I went in to hiding until 2005 due to unwanted and degrading media interference. It was when the situation within my ethnic community (Indigenous New Zealander Māori), was being threatened by HIV, that I became an advocate for Māori. We started a non-profit organisation called INA (Māori, Indigenous & South Pacific) HIV/AIDS Foundation.

On reflection, and spending time in the Pacific Islands reviewing the criminalisation of HIV in Papua New Guinea (my husband’s country) – first Pacific country to have HIV specific legislation – I began to recognise that the hyper-emotive ‘knee jerk’ reaction and subsequent dramas during the trial may have been a ‘tad’ heavy handed.

I started to become aware of how the criminalisation of HIV can cause stigma and discrimination for those living with HIV.  I then started to notice the differences that criminal law had on different cultural backgrounds, producing varied levels of severe to mild discrimination.  I also saw the agendas of all those who have a stake in this type of legislation. I’ve found the entire area to be a political minefield.  Whose rights are we wanting to protect? The rights of negative people wanting to be safe from infection? Or the rights of positive people to be protected from stigma and discrimination? It’s been said that the sway of the pendulum will always politically favour the majority. In Papua New Guinea’s HIV laws, they do have clauses for both sides: reckless infection of others, and discrimination of PLHWA.

INA has a philosophy that we are all responsible for HIV, and when all take responsibility, the fight will be won! Negative/Positive all have equal responsibility for HIV. HIV is an individual and public health concern.

In saying that, our women and men (Māori) have difficulty in negotiating safer sex and consensual sex. We have no programmes available to target either behavioural changes. Safer sex education is also lacking for all ages within cultural demographics. Sensitivity to cultural laws and beliefs on sex are not considered at all.

I’ve been quoted before saying that perhaps counselling and therapy would have been an option for Peter Mwai. Perhaps name, blame and shame, is not the best management of someone who puts others at risk.

I now believe that New Zealand’s criminal law is an ineffective and inappropriate tool used to address HIV risk behaviour. The psychological and mental state of a person who puts others at risk is not addressed in criminal law. Punishing them may have the opposite effect.  PLWHA are living longer with medication: would prison create a more calculating person that would be released eventually and continue to act with reckless disregard? There is no evidence to suggest that incarceration will offer any significant benefits in changing behaviours.

Criminal charges do little to stop the spread of HIV, within some cultures it dissuades people from being tested, having an attitude of ‘ignorance is bliss’, then they can’t be charged or fear of a positive test resulting in cultural violence, stigma and discrimination. Criminal charges do, however, divert resources and attention away from prevention initiatives already in place that are having an impact on reducing HIV transmission.

Most PLWHAs take responsibility for their bodies and their virus, practicing safer sex and disclosing to partners when necessary. I reiterate, it’s everybody’s responsibility to reduce exposure to any STI. Criminalising HIV puts the entire onus and responsibility on the PLWHA.


My organisation, INA, would also like to acknowledge that ‘wilful’ or ‘reckless’ HIV infection continues to be an issue in New Zealand, with no criminal charges or spotlight placed on it in some communities. The cases mentioned above all involved women, with the most recent cases involving both men and women.  Sadly amongst our Men who have sex with men community, the prevention message targeting them the most as ‘High Risk’ has also created an acceptance of balancing the risk and life style. With many transmission of HIV being completely hidden with an acceptance attitude.

Mental illness, significant cognitive and/or psychological impairment, or a reasonable apprehension of harm adds to the compounding situation, with criminal charges doing nothing to respond to this reality or prevent further infection in such circumstances.

There has been no National Review of HIV in New Zealand, giving us a factual ‘picture’ of the situation in New Zealand. Even with recent criminal charges, there has been no directive on assessing the situation.  The complexities (homophobia, sexism, racism, stigma and discrimination) are being ignored and ‘panic’ is motivating decisions. That may be irreversible should these decisions become policy. All legal and policy responses would be best based on the best available evidence, HIV prevention, care, treatment, support and respect for human rights.

We support and advocate for a strong national policy response to HIV prevention and transmission.  We support a National Review of present criminal law in relation to HIV and review of support services available. And the exploration and development of alternatives to criminal charges and HIV, incorporating alternative responses addressing the individual, environment and social contexts involved.

Ukraine: Revised HIV law may no longer mandate disclosure

A new version of Ukraine’s HIV-specific law, adopted by the Ukrainian Parliament in its first hearing on 21 October, promises several positive changes, including removal of the statute mandating disclosure of known HIV-positive status prior to any activity that may risk exposure.

According to a press release from the International AIDS Society, the following changes will be implemented:

  • People living with HIV will no longer be barred from entering, staying or seeking residence in Ukraine based solely on HIV positive status;
  • NGOs providing HIV treatment, prevention and care services will have the right to apply for state contracts
  • People living with HIV will have the right to seek compensation for the unlawful disclosure of their HIV status
  • HIV-positive injecting drug users (IDUs) and other IDUs will have the right to receive Opioid Substitution Therapy (OST)
  • People living with HIV will be encouraged to disclose information about the risk of HIV transmission, however they will no longer be required by law to disclose their status to partners

WHO Europe notes

The revised law is the result of two years intensive and collaborative work, including the involvement of non-governmental sector, especially All-Ukrainian Network of People living with HIV, the support from the USAID-funded HIV/AIDS Service Capacity Project in Ukraine and the United Nations Team Group on HIV/AIDS. The change would not have been successful without a close collaboration with the Parliamentarian Committee on Public Health and its chair Dr Tatyana Bakhteeva who was very much committed to the issue.

Dr Volodymyr Kurpita, Executive Director of All-Ukrainian Network of People living with HIV told me in an email that since the final version of the revised Prevention of AIDS and Social Protection of Population Act is still awaiting parliamentary approval in the second hearing, the final wording of the law on HIV disclosure is still not known, but “we can highlight it is more progressive and less restrictive as previous one.”  

In Ukraine, newly diagnosed individuals must undergo a period of mandatory hospitalisation during which it is expected that they will sign an undertaking to obey this 1998 disclosure law. The reckless or intentional “conscious exposing to danger of infection [HIV exposure], or infection [HIV transmission]” is also subject to prosecution, with a maximum penalty of ten years’ imprisonment. There have been at least six prosecutions and four convictions under these laws.

US: Sean Strub blogs on why tackling criminalisation is crucial

POZ magazine founder, fellow anti-criminalisation advocate – and friend – Sean Strub, recently joined forces with the incredible Catherine Hanssens and her amazing team at the Centre for HIV Law & Policy to launch the Positive Justice Project.

In his latest blog post at, Criminalization 101, he explains why the criminalisation of non-disclosure, exposure and non-intentional transmission has become one of the most pressing issues of our time.

I’m including his introduction here.  Read the entire post at

Over the last several years, as I’ve talked to a wider circle of advocates, people with HIV and policy leaders about HIV criminalization, it has become apparent to me that many people are not well-informed on the topic. Some instinctively favor prosecuting people with HIV for not disclosing their HIV status prior to intimate contact, but these opinions usually evolve quickly as a person learns more about the issue.

Here’s a background piece I have been using–and continuing to modify–to introduce the issue to others. It is a bit lengthy for a blog post. If you would like a footnoted and properly formatted version emailed to you, just shoot me a note at sstrub (at) I look forward to any comments or suggestions.

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Limiting the Law: Silence, Sex and Science (Canadian HIV/AIDS Legal Network, 2010)

A community forum on the criminalization of HIV in Canada
Thursday, September 30, 2010
Toronto, Ontario

Presentations by:
Edwin J. Bernard, British HIV-positive writer, editor and activist; editor, HIV and the Criminal Law and “Criminal HIV Transmission” blog
Richard Elliott, Executive Director, Canadian HIV/AIDS Legal Network
Eric Mykhalovskiy, Associate Professor, York University, Department of Sociology
Tim McCaskell, The Ontario Working Group on Criminal Law and HIV Exposure
Rai Reese, Women’s Prisons Program Coordinator, Prisoners’ HIV/AIDS Support Action Network

US: Positive Justice Project launches, aims to remove HIV-specific laws

Press Release: HIV Advocacy Group Launches Positive Justice Project To Fight Stigma and Discrimination by Repealing HIV-specific Criminal Statutes

The Positive Justice Project, a campaign of the Center for HIV Law and Policy, was launched this week to combat HIV-related stigma and discrimination against people with HIV by the criminal justice system. A day-long organising meeting, held September 21st in New York, included more than 40 participants from legal, government, grant-making and community service organisations.

The focus of the Positive Justice Project is the repeal of “HIV criminalisation” statutes — laws that create HIV-specific crimes or which increase penalties for persons who are HIV-positive and convicted of criminal offences.

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

  • A man with HIV in Texas who is now serving 35 years for spitting at a police officer;
  • 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;
  • And a man with HIV in Michigan who was charged under the state’s anti-terrorism statute with possession of a “biological weapon,” after an altercation with a neighbour.

In none of the cases cited was HIV transmitted. Actual HIV transmission—or even the intent to infect—is rarely a factor in HIV criminalisation cases.

Instead, most prosecutions are not for HIV transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing claims about verbal consent that are nearly impossible to prove. Anti-criminalisation advocates support prosecution only in cases where the intent to harm can be proven.

HIV criminalisation undercuts the most basic HIV prevention and sexual health message, which is that each person must be responsible for his or her own sexual choices and health. Criminalisation implies a disproportionate responsibility, providing an illusion of safety to the person who is HIV-negative or who does not know his or her HIV status.

As a result, ignorance of one’s HIV status is the best defence against prosecution in these cases, ultimately providing a disincentive to testing and self-awareness. Only by getting an HIV test and knowing one’s HIV status is one subject to arrest and prosecution. This flies in the face of established evidence that it is those who are untested – i.e., those who are safe from prosecution – who most frequently transmit HIV.

Research has demonstrated that HIV criminalisation statutes do nothing to reduce HIV transmission and, in fact, because they further stigmatise already-marginalised populations and discourage HIV testing, they may contribute to further HIV transmission.

The Center for HIV Law and Policy also this week released a draft of the first detailed analysis of HIV-specific laws and prosecutions in all 50 states, U.S. territories and the military. With more than 400 prosecutions to date, the U.S. has had more HIV-specific criminal cases than any other nation on earth.

According to the Positive Justice Project organisers, the challenge of repealing laws that punish people on the basis of their HIV status cannot be met without:

  • Broader public understanding of the stigmatising impact and negative public health consequences of criminalisation statutes and prosecutions that are perpetrated under their guise;
  • Greater community consensus on the appropriate use of criminal and civil law in the context of the HIV epidemic;
  • Clear, unequivocal leadership and statements from federal, state and local public health officials on the causes and relative risks of HIV transmission and the dangers of a punitive response to HIV exposure and the epidemic;
  • And a broader and more effective community-level response to the ongoing problem of HIV-related arrests and prosecutions.

“Misperceptions about the routes and risks of HIV transmission continue to fuel fear and myths about people with HIV that leads to lower acceptance of HIV testing and greater stigma and discrimination. Nearly 30 years into the epidemic, people still fear contact with people with HIV, working with them or allowing them near their children,” said Catherine Hanssens, the founder and executive director of the Center for HIV Law and Policy.

“HIV-specific laws have created a viral underclass. There is no more extreme manifestation of stigma than when it is enshrined in the law,” said Sean Strub, who has lived with HIV for more than 30 years. Strub is a senior advisor with the Center for HIV Law and Policy and joined in launching the Positive Justice Project.

Vanessa Johnson, a Positive Justice Project planning committee member and Executive Vice President of the National Association of People with AIDS, said, “When the government uses the fact of a person’s HIV test and subsequent result to turn around and encourage prosecution of that person for behavior that otherwise is legal for people who are untested, it engages in dangerously confusing double-speak that undermines the very HIV testing and prevention goals it claims to prioritize.”

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: 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.

Global: UNAIDS/UNDP supports Swiss statement, announces new Global Commission on HIV and the Law

Following on from yesterday’s post about the report by the UN Special Rapporteur on the Human Right to Health, on the impact of criminalisation, UNAIDS and UNDP have issued a statement welcoming the report. (Click here for the pdf: full text below)

One of the most intriguing things about this statement is its recognition that antiretroviral therapy significantly reduces the risk of infection on an individual level, something UNAIDS has not previously supported.

It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.

The footnote following the phrase “greater impacts for individuals” states:

The Swiss National AIDS Commission (EKAF) has stated that “an HIV-infected person on antiretroviral therapy with completely suppressed viraemia (‘effective ART’) is not sexually infectious, i.e. cannot transmit HIV through sexual contact.” However, the Commission qualifies its statement, noting that it is considered valid only so long as: (a) the person adheres to antiretroviral therapy, the effects of which must be evaluated regularly by the treating physician, and (b) the viral load has been suppressed (below 40 copies/ml) for at least six months, and (c) there are no other sexually transmitted infections. See P Vernazza et al (2008), “Les personnes séropositives ne souffrant d’aucune autre MST et suivant un traitment antirétroviral efficace ne transmettent pas le VIH par voie sexuelle”, Bulletin des médecins suisses 89:165-169. Available on-line at

This contrasts with the extremely non-committal statement UNAIDS made jointly with WHO immediately after the Swiss Statement.

But that’s all water under the bridge, I guess. Yes, any laws that prevent people from knowing their status and accessing treatment are bad. But we must fight to ensure that treatment’s impact on infectiousness is always a secondary factor to the individual’s choice regarding whether and when to start treatment. Treatment must be treatment first, prevention second. That’s a big part of the work I’m currently doing for GNP+ and UNAIDS producing a new framework for positive prevention known as Positive Health, Dignity and Prevention.

Another significant part of the UNAIDS/UNDP statement is the first public announcement of a new Global Commission on HIV and the Law (which had been called the International Commission on HIV and Law or ICAL in documents I’d previously seen) “which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations.”

The Commission will be officially launched later this month.

Statement by the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations Development Programme (UNDP)

14th Session the Human Rights Council

Agenda Item 3: Promotion and protection of all human rights, civil,
political, economic, social and cultural rights, including the right to

7 June 2010

Mr President, distinguished delegates, ladies and gentlemen,

The UNAIDS Secretariat and UNDP thank the Human Rights Council for the opportunity to speak under this agenda item. As this Council knows, for almost 30 years, the world has sought the most effective response to the HIV epidemic. This challenge has repeatedly shown that a human rights-based approach to HIV is the most effective approach to HIV.

This fact has been long recognized by the Commission on Human Rights, this Council and by Member States. This is because human rights and legal protections are essential to enable people to get the HIV information and services they need, to avoid infection, and if HIV positive to disclose their status and get treatment. It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.

Many States continue to criminalize sexual minorities, people who use drugs, people
who engage in sex work, as well as people living with HIV. The result is that thousands of people fear or are unable to get tested for HIV, to disclose their HIV status, to access HIV prevention, treatment and care. This puts both these groups and the larger public at risk. Under these circumstances, universal access to HIV prevention, treatment, care and support will not be realised; and we will not achieve many of the Millennium Development Goals.

Because of this, the Executive Director of UNAIDS, Michel Sidibé, has made one of the corporate priorities of UNAIDS to support countries to “remove punitive laws, policies, practices, stigma and discrimination that block effective AIDS responses.”

For these reasons, the UNAIDS Secretariat and UNDP welcome the report of the Special Rapportueur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. We hope it will help to generate constructive debate, and catalyse change toward a more rights-based and effective AIDS response.

The report of the Special Rapporteur underlines how the criminal law, when misused, can and does have a very negative impact on the right to health. When the criminal law is applied to adults engaging in private consensual sexual behavior – whether in the context of same-sex sexual orientation or in the context of the exchange of money for sex – it also violates the rights to privacy and liberty and acts as a major impediment to HIV prevention and treatment. Where overly broad criminal laws are applied to people living with HIV, the impact is in direct contradiction to public health efforts to encourage people to come forward to get on treatment and practice safe sex, and reduce HIV transmission in the context of drug use.

The UNAIDS Secretariat and UNDP are fully aware that, in many societies, these issues are the subject of much social, cultural and religious debate. However, the UNAIDS Secretariat and UNDP are concerned that criminalization of aspects of private, consensual adult sexual conduct singles out particular groups for invidious treatment, undermines individual and public health, and transgresses various international human rights norms. Thus, for public health and human rights reasons, the UNAIDS Executive Director and the United Nations Secretary General have called for the removal of punitive laws, policies and practices that hamper the AIDS response. Successful AIDS responses do not punish people, they protect them.

UNDP, on behalf of UNAIDS, is launching the Global Commission on HIV and the Law, which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations. The UNAIDS Secretariat and UNDP greatly hope that this Commission will help States and civil society to better use law, law enforcement and access to justice to protect all people from HIV and its impact, as well as from human rights violations in the context of HIV. We look forward to bring to the Council the findings of the Commission at the end of 2011.

Thank you.

US: CDC finally admits criminalisation is problematic

A campaign by the HIV Prevention Justice Alliance for the US Centres for Disease Control and Prevention (CDC) to confront criminalisation in the United States is finally bearing fruit.

The HIV Prevention Justice Alliance is network of organisations advocating for effective and just HIV prevention policies for the United States, coordinated by Community HIV/AIDS Mobilization Project (CHAMP) in collaboration with AIDS Foundation of Chicago, and SisterLove.

Their campaign began in 2008. The Alliance was extremely concerned that prosecutions for HIV-associated spitting and biting were doing a lot of harm.

CDC has long maintained that contact with saliva, tears, or sweat does not expose others to an appreciable risk of HIV transmission. The continued perpetuation of false information by the justice system and the media on how the virus is transmitted underscores the need for more effective HIV communication and education strategies at the highest levels that are accessible to the general public. In light of an unabated and growing HIV epidemic among certain segments of the U.S. population, we believe that it is incumbent upon the CDC to aggressively respond and provide the public with the most accurate information to reduce HIV vulnerability.

A December 2008 letter from the CDC had previously pledged to do all of what they now promise to do (see below), but when no action was taken, the Alliance sent another letter in January 2010 to the CDC’s Kevin Fenton – Director of the National Center for HIV/AIDS, Viral Hepatitis, STD and TB Prevention – “to urge CDC to take action on the steps it had identified to address the criminalization of HIV.”

In a letter signed by Fenton, the CDC has now agreed to:

  • Update and expand the “Rumors, Myths, and Hoaxes” section of the CDC website by April 30th 2010.
  • Update and expand CDC’s factsheet and question and answer sets (Q&As) regarding HIV transmission to better address myths and misconceptions about HIV transmission by April 30th 2010.
  • Develop internal talking points to ensure CDC staff is equipped to deliver consistent, scientifically accurate information when they receive inquiries around issues of criminalization and/or myths and misconceptions about HIV transmission by April 30th 2010.
  • Survey health departments, beginining May 2010 to determine whether they have collaborative relationships with criminal justice personnel and, if so, how these relationships affect HIV prevention efforts in communities.
  • Use information obtained from the surveys to develop a communications package to provide to state and local health departments with the tools and messages they need to facilitate interactions with their criminal justice counterparts by August 30, 2010.

The letter concludes: “While these activities represent a concrete beginning, we realize there is much to be done to address the need for a public health, rather than punitive perspective to drive how people living with HIV/AIDS are approached in the United States. We all must continue to be forward thinking in this endeavor, and collectively we will make a broader impact. We at CDC appreciate the work organizations such as yours do in the communities affected by this disease.”

I’d like to congratulate all those involved in persuading the CDC to take its first tiny steps towards making a stand against the draconian treatment of people living with HIV in the United States. Their response is focused on the most egregious criminal prosecutions, and there is, indeed, “much to be done to address the need for a public health, rather than punitive perspective to drive how people living with HIV/AIDS are approached in the United States.”

For example, the CDC could also publically state that non-disclosure laws do more harm than good for public health, and also support the idea (which they already are exploring on a population level) that on an individual level people on successful antiretroviral treatment are as as unlikely to expose their sexual partners to HIV as those who wear condoms.

Click on the image of Mr Fenton’s pledge to read the entire letter.

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.