Today, on International Human Rights Day, the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK) and the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) have launched the Positive Justice campaign to finally end HIV criminalisation in Kenya.
In 2015, in Aids Law Project v Attorney General and Others [2015] the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act unconstitutional and suspended the law. The High Court ruling focused on the absence of a definition for “sexual contact”, holding that it is impossible to determine what acts were prohibited. It also found the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.
Today’s Positive Justice campaign launch (photo: @KELINKenya via Twitter)
Consequently, today KELIN have filed a petition asking the High Court in Nairobi to strike down as unconstitutional Section 26 of the Sexual Offences Act on the grounds that it discriminates against people living with HIV, women, and the poor, and violates a number of fundamental human rights.
The prosecuting authority’s interpretation of Section 26 of the Sexual Offences Act, as demonstrated by the prosecutions of several of the PLHIV challenging the law, effectively makes it a crime for a woman with HIV to birth and raise children. The prevailing interpretation also effectively criminalizes marriage between a person who has HIV and a person who does not.
“Laws that make criminals of people simply for having HIV ignore science. People who are on HIV treatment and are virally suppressed are not infectious. The key to a successful HIV response and ending AIDS is making sure everyone with HIV knows their status and gets on treatment. These laws make that impossible. Thousands of discordant couples and breastfeeding mothers living all over Kenya run the risk of being arrested and charged under this provision if they come forward for HIV testing,” noted M.A, the fourth petitioner and a representative of the Discordant Couples in Kenya.
HIV criminalization laws are also notorious for abuse and arbitrary enforcement. “Such abuse will always be targeted at persons living with, vulnerable to or believed to be living with HIV whether or not their actions were culpable and whether or not their actions exposed another to the risk of contracting HIV,” cautioned Mr. Nelson Otwoma, the Director at the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK).
It is for this reason that five people living with HIV and stakeholders working in HIV response came together to file the petition and launch the campaign dubbed Positive Justice. The campaign seeks to raise awareness on the negative effects of enforcement of the law on PLHIV, and engage relevant stakeholders including the media, legislature, judiciary, law enforcers, and Ministry of Health in advocating for the rights of people living with HIV.
“This petition will not only safeguard the rights of those living with and affected by HIV and other sexually transmitted infections but also help alleviate the discrimination and stigma they face and help Kenya remain on track in achieving the 2020 UN AIDS Fast Track targets in ending AIDS,’ said Mr. Allan Maleche, the Executive Director at KELIN.
Uganda: New efforts underway in Uganda to challenge HIV legislation, especially its provisions on the disclosure of HIV status
Kampala, Uganda | IAN KATUSIIME | Rosemary Namubiru, a nurse, was in 2014 sentenced to three years in jail for criminal negligence over what seemed a potential infection of a baby with HIV the virus that causes AIDS. Her crime was that as an HIV positive nurse, she placed the life of a baby in danger when she pricked herself with an injection she was administering.
In her defence, Namubiru said she pricked herself accidentally as sometimes happens among medical workers. But her pleas were cast aside as police and swarms of media cameras swooped on her. Test results for HIV infection on the baby were negative but Namubiru still served her sentence.
When she was released after one year of her sentence, she reportedly got threats to harm her from her neighbours and had to travel to the countryside and stay away from her home in Kampala for several months for her safety.
Although Namubiru was not charged under the HIV and AIDS Prevention and Control Act 2014, her case was widely discussed recently at a symposium organised for journalists by Uganda Network on Law, Ethics and HIV/AIDS (UGANET) meant to discuss better ways for which the media can report about the law. The symposium was held at Imperial Golf View Hotel in Entebbe.
UGANET has already challenged the law in the Constitutional Court but they say the symposium with journalists on Nov.6 and 7 was necessary to carry out more media sensitisation on the law. They said they have faced an uphill battle challenging the law; especially its provisions on disclosure of HIV status.
“The vagueness of some provisions of the law has caused many arrests,” says Dora Musinguzi, the Executive Director of UGANET.
Some of the contentious provisions of the law include Article 18 (2) (d) where the results of an HIV test may be disclosed or released to “a medical practitioner or other qualified officer who is directly involved in the treatment or counselling of that person, where the HIV status is clinically relevant.”
Musinguzi says this is “too wide a window” for the medical officer to operate in. The other provisions of the law are those that criminalise “attempted transmission of HIV” and “intentional transmission of HIV”. The argument against this provision is that it interferes with medical ethics and the doctor patient relationship. She added that criminalisation of HIV positive persons fuels discrimination as happened in the case of Namubiru.
Members of UGANET were unhappy with the way journalists covered Namubiru’s arrest. The general feeling was that the media led the public trial and conviction of Namubiru.
Government is fighting people with HIV
Beatrice Were is the embodiment of living positively with HIV; the virus that causes AIDS. She was a young woman when she discovered she was HIV positive in 1991. Two years later, she lost her husband and thought her world had ended. She even wrote a will. But thanks to a support environment, she took on a new turn as an HIV activist. Over the years, she has spoken at various forums both in Uganda and abroad.
However a few years ago, Were said at the symposium, she started worrying not because of the deadly virus but due to the HIV and AIDS Prevention and Control law. She said it has hindered some of her dreams.
“I love children and have always wanted to start a kindergarten but that law may kill the business,” she said and is worried of Article 18 (2) (e) in the HIV law which states that results of an HIV status may be disclosed to “any other person with whom an HIV infected person is in close or continuous contact including a sexual partner, if the nature of contact, in the opinion of the medical practitioner or other qualified officer, poses a clear and present danger of HIV transmission to that person.”
This means that a doctor can disclose the status of someone living with HIV to friends, workmates depending on the doctor’s assessment of the closeness. This possibility is something that alarms activists like Were.
She says the law ignores the high level of stigma attached to HIV/AIDS sufferers in Uganda and the caution required when disclosing a positive status.
She says, for example, she cannot start a kindergarten for fear of the law because a medical practitioner might disclose her status to children under her care and frighten some of them even if she poses no danger to them.
“I feel like the government is fighting people with HIV,” she says.
She says the proposed law is the latest sign that the government is making lots of steps backwards since the 1990s when it was regularly praised for its progressive policies on HIV/AIDS.
Were and other members of UGANET say the government largely ignored their views as the law was being made despite efforts to make their contribution.
HIV activists say that with the law in its current form, fewer people will be willing to come out on their status given the current environment.
“When the law is not there, you see a lot of Beatrices (Were) and less of Namubirus,” Musinguzi remarked.
Members of UGANET also oppose mandatory testing for HIV, citing mainly cases of partners of pregnant women.
“While some of these laws are well intentioned, mandatory testing laws are regressive,” says a lawyer who did not want to be named. “They drive people away from health facilities for HIV prevention and counselling,” she added.
Were says she is concerned about those who unlike her may fear disclosing their status and withdraw further due to the current legal regime.
“The law is a toxin in the environment of HIV where we have invested so much in the fight,” she said.
Activists selfish?
But Dr Medard Bitekyerezo, the chairman of the National Drug Authority and who was key in the composition of the law when he was a Member of Parliament for Mbarara Municipality says those who are against this law are being ‘’selfish’’.
“What happens when someone who smokes marijuana rapes your 12-year old daughter and infects her? Of course you test her and also this person to protect other people from him,” he explains.
Bitekyerezo says in the process of making this law, he and other MPs made serious consultations where a number of case scenarios were drawn up. “We are not traumatising or criminalising anybody. What is wrong with somebody knowing their status and then putting a safeguard? Let them not be selfish.”
He tells The Independent that part of the information that was used during the making of the law was gathered when he was chairman of Board of Trustees AIDS Information Centre (AIC).
On the charge of criminalisation, he says not everybody with HIV is bad-hearted. “There are some people who have HIV and behave more responsibly than those who are negative,” he adds that some of those who are positive are living safer lives.
Bitekyerezo who says he spent a lot of time in Mbarara treating HIV positive people says some of the clauses in the law have been misinterpreted. “There is no doctor who is going to disclose anyone’s status. He says the law is meant to help people who may be positive but have negative partners and are looking to conceal their status from the negative one.
“Activists don’t want to help people. The message to doctors and nurses is simple- safeguard the people in your hands, protect them from HIV.”
Outside the air-conditioned conference rooms of the luxurious Imperial Golf View Hotel, as those for and against argue and face off in courts of law, the media must now find new ways to cover contentious cases of HIV positive persons like Namubiru who get caught under a disputed HIV law.
The Eurasian Women’s Network on AIDS is launching the “HIV Is Not a Crime” awareness campaign, which aims to draw attention to the situation with the criminalization of HIV transmission in the Eastern Europe and Central Asia region. Within the campaign, we expect to hold discussions with activists and human rights defenders who will enhance their professional level, moreover, we will take efforts to change public opinion on the topic of criminalization.
We will focus on the following issues:
– Why does the criminalization of HIV transmission not solve the problem of the HIV spread?
– Why criminalization violates human rights?
– How are criminalization and gender related?
– How a person who is charged with transmitting HIV can defend themselves?
– … And many more questions, that you can write to us in the comments and send by letters and messengers.
The campaign “HIV Is Not a Crime” is one of the components of the “Chase Virus, Not People” campaign of EECA region community networks, which reflects the criminalization of HIV as one of the key barriers to access to treatment and support, conducive to an increase in new HIV/AIDS cases and mortality, and also being a violation of human rights.
The information campaign “HIV Is Not a Crime” is held within the framework of the project “HIV Criminalization Scan”, supported by the Global Network of People Living with HIV (GNP+). The project was launched in 2017 and produced an analytical report on the situation with the criminalization of HIV transmission in 9 countries of the EECA region, published in January 2018, as a preliminary result. You can read the report and cases in the “Criminalization” section on page “Our projects” page of www.ewna.org website.
The campaign is supported by the East Europe and Central Asia Union of People Living with HIV (ECUO) and the Minusvirus.org online platform
US: Coalition of US organisations and networks issue Call to Action for HIV Criminal Law Reform grounded in racial justice
Call to Action for Racial Justice in HIV Criminal Law Reform
A coalition of racial justice, HIV, and criminal justice organizations and networks have come together to issue this Call to Action in support of an HIV criminal law reform movement that is grounded in racial justice and leaves no one behind.
Since then, the urgency of this question has only intensified: changes inNorth Carolina, Canada andSweden have all hinged on whether or not a person is virally undetectable. Many states continue to grapple with how or if U=U should be used as an essential element in advocacy for HIV criminal law reform. Some argue that eliminating criminal liability for those who can document regular health care engagement and consistently low viral load is an improvement that is better than no progress at all.
However, HIV justice in the criminal legal system cannot be achieved without racial justice. Particularly with the well-documented racism in the U.S. criminal legal system, justice demands interrogation of the harms inherent in relying on U=U as a vehicle for HIV criminal law reform.
Modern, consistent treatment and care has significantly improved the lives of people living with HIV, whose life expectancies are now similar to HIV-negative people. However, fewer than half of all PLHIV in the US have sustained viral suppression.[2] Any reform that uses viral detectability as a litmus test for criminal liability leaves a majority of PLHIV behind and creates a viral underclass of PLHIV whose increased risk of prosecution effectively gets a current-day seal of approval.
If we look at this general statistic more closely, disturbing patterns emerge. National data show unequivocally that there are significant racial disparities in treatment access and sustained viral suppression. The most recent comprehensive analysis showed that Black PLHIV had the lowest level of sustained viral suppression across the board — 40.8% as compared to 56.3% of whites and 50.1% of Hispanics.[3]
Any HIV criminal law reform effort that relies on viral suppression will inevitably leave behind Black PLHIV who face the greatest harm from the intersecting injustices of the U.S. criminal legal system and inequitable treatment access. We must not only acknowledge these inequities in our efforts but also actively seek to challenge and dismantle them in our calls for change.
As the HIV criminal law reform movement continues to grow and more states mobilize for reform, we must hold ourselves accountable to our communities and to each other. In recent years, four states have passed measures amending their HIV criminal laws or health code,[6] and we know there are new legislative actions on the horizon — this past legislative session saw at least five HIV criminal law bills.
We issue this Call to Action with the understanding that state coalitions often face difficult decisions and options that may reduce harm or appear to reduce harm in the short-term, but can also have unintended negative consequences in the long-term, or for those who are most frequently targeted by law enforcement. Our hope is that advocates will continue to learn from one another and pursue the best possible outcomes in their states while maintaining a commitment to strategies for reform which advance racial, economic, and gender justice.
Take action:
Endorsethe Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform.
Share the Consensus Statement as a tool and resource to support conversations around treatment access, HIV criminal law reform, and racial justice.
Educate on the personal empowerment and critical importance of U=U and other scientific advances in HIV as tools for reform rather than heart of reform.
Advocate for an HIV criminal law reform strategy which is accountable to all of the communities it affects.
The following organizations join this Call to Action:
The Black AIDS Institute
The Center for HIV Law and Policy
The Counter Narrative Project
Positive Women’s Network
Prevention Access Campaign/U=U
The SERO Project
NOTES:
[1] Original launching endorsers included the Center for HIV Law and Policy, Prevention Access Campaign/U=U, The Counter Narrative Project, Treatment Action Group, Women With a Vision, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, The National LGBTQ Task Force, PFLAG, and Housing Works.
Networks of people living with HIV and human rights and legal organisations worldwide welcome the Expert Consensus Statement on the Science of HIV in the Context of Criminal Law
The Expert Consensus Statement was written to both assist scientific experts considering individual criminal cases, and also to urge governments and criminal justice system actors to ensure that any application of the criminal law in cases related to HIV is informed by scientific evidence rather than stigma and fear. The Statement was published in the peer-reviewed Journal of the International AIDS Society (JIAS) and launched at a critical moment during the 22nd International AIDS Conference, now underway.
“As long-time activists who have been clamouring for a common, expert understanding of the current science around HIV, we are delighted with the content and widespread support for this Statement,” said Edwin J Bernard, Global Co-ordinator of the HIV Justice Network, secretariat to the HIV JUSTICE WORLDWIDE campaign. “Eminent, award-winning scientists from all regions of the world have come together to provide a clarion call for HIV justice, providing us with an important new advocacy tool for an HIV criminalisation-free world.”
The Statement provides the first globally-relevant expert opinion regarding individual HIV transmission dynamics (i.e., the ‘possibility’ of transmission), long-term impact of chronic HIV infection (i.e., the ‘harm’ of HIV), and the application of phylogenetic analysis (i.e., whether or not this can be used as definitive ‘proof’ of who infected whom). Based on a detailed analysis of scientific and medical research, it describes the possibility of HIV transmission related to a specific act during sexual activity, biting or spitting as ranging from low to no possibility. It also clearly states that HIV is a chronic, manageable health condition in the context of access to treatment, and that while phylogenetic results can exonerate a defendant when the results exclude them as the source of a complainant’s HIV infection, they cannot conclusively prove that one person infected another.
“Around the world, we are seeing prosecutions against people living with HIV who had no intent to cause harm. Many did not transmit HIV and indeed posed no actual risk of transmission,” said Cécile Kazatchkine, Senior Policy Analyst with the Canadian HIV/AIDS Legal Network, a member and key partner organisation of the HIV JUSTICE WORLDWIDE campaign. “These prosecutions are unjust, and today’s Expert Consensus Statement confirms that the law is going much too far.”
Countless people living with HIV around the world are currently languishing in prisons having been found guilty of HIV-related ‘crimes’ that, according the Expert Consensus Statement, do not align with current science. One of those is Sero Project Board Member, Kerry Thomas from Idaho, who says: “I practiced all the things I knew to be essential to protect my sexual partner: working closely with my doctor, having an undetectable viral load, and using condoms. But in terms of the law, all that mattered was whether or not I disclosed. I am now serving a 30-year sentence.”
While today’s Statement is extremely important, it is also crucial to recognise that we cannot end HIV criminalisation through science alone. Due to the numerous human rights and public health concerns associated with HIV criminalisation, UNAIDS, the Global Commission on HIV and the Law, the UN Committee on the Elimination of Discrimination against Women, and the UN Special Rapporteur on the Right to Health, among others, have all urged governments worldwide to limit the use of the criminal law to cases of intentional HIV transmission. (These are extremely rare cases wherein a person knows their HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit the virus.)
We must also never lose sight of the intersectional ways that — due to factors such as race, gender, economic or legal residency status, among others — access to HIV treatment and/or viral load testing, and ability to negotiate condom use are more limited for some people than others. These are also the same people who are less likely to encounter fair treatment in court, within the medical system, or in the media.
“Instead of protecting women, HIV criminalisation places women living with HIV at increased risk of violence, abuse and prosecution,” says Michaela Clayton, Executive Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The scientific community has spoken, and now the criminal justice system, law and policymakers must also consider the impact of prosecutions on the human rights of people living with HIV, including women living with HIV, to prevent miscarriages of justice and positively impact the HIV response.”
HIV criminalisation is a pervasive illustration of systemic discrimination against people living with HIV who continue to be stigmatised and discriminated against on the basis of their status. We applaud this Statement and hope it will help end HIV criminalisation by challenging all-too-common mis-conceptions about the consequences of living with the virus, and how it is and is not transmitted. It is indeed time to bring science to HIV justice.
To read the full Expert Consensus Statement, which is also available in French, Spanish and Russian in the Supplementary Materials, please visit the Journal of the International AIDS Society at https://onlinelibrary.wiley.com/doi/full/10.1002/jia2.25161
Strategies to oppose the unscientific criminalisation of HIV transmission received a high profile at events in advance of the 22nd International AIDS Conference (AIDS 2018) in Amsterdam this week.
Photo: Representatives of People PLUS at the Gomel Regional Court
Our EECA hub, the Eurasian Women’s Network on AIDS (EWNA), part of the GNP+ family, found that between January 2015 and June 2017, 128 criminal cases had been prosecuted under Article 157, Belarus’ overly broad HIV-specific criminal law.
The highest number of cases in the country were reported in the Gomel region. Between 2012 and 2016, 38 cases were reported. But in the first half of 2017 alone, at least 50 cases had been filed before the courts.
The vast majority of the cases involve people in heterosexual relationships. The law is understood and applied in a way that a person living with HIV not only has a duty to disclose, but also a duty to not place another person at risk of acquiring HIV. While some cases brought to the courts involve allegations of non-disclosure, a large number of cases are between couples of different HIV status, where both parties were aware of HIV in the relationship, and the HIV-negative partner consented to sex.
Charges are laid by the state and are regardless of the partner’s desire to prosecute and regardless of whether protective measures were taken by the person living with HIV, such as using a condom or being on treatment with a low or undetectable viral load.
Cases typically commence when health care providers hear that an HIV-negative person is in a sexual relationship with a person living with HIV, or when a pregnancy is involved. In order to be charged, all that is required is for the person living with HIV should know their HIV status and be registered with the state for HIV services.
As per community reports, people living with HIV are not getting the proper treatment, care and support that they need because of the legal barriers that Article 157 creates in the lives of people living with HIV.
In practice, the law in Belarus keeps people who learn anonymously of their HIV status from accessing treatment, education and counselling because people in Belarus can know about their HIV status and not be registered. Without being formally aware of the presence of HIV, then a person can avoid is not criminally liable. When people face the threat of criminalisation, ignorance of the diagnosis of HIV can be the most effective legal protection.
Crucially, people who are not registered as living with HIV with the state do not receive antiretroviral treatment and therefore endanger themselves and their sexual partners.
Building the case against criminalisation on the ground
People PLUS is a public association representing people living with HIV in Belarus.
It provides counselling to clients/patients – helping them to “correctly” answer questions and complain against forced examination during epidemiological investigations from the Ministry of Health, as well as the Ministry of Internal Affairs. This has been a positive experience with, over the past month, two refusals to initiate criminal cases.
In the Gomel region – where the highest number of cases under Article 157 of the Criminal Code of the Republic of Belarus are being reported – People PLUS have held meetings with the heads of the Epidemiological Department – the “sources” of initiating criminal cases in the region.
An agreement was reached, that without violating guidelines (according to a Ministerial Agreement the Epidemiological Department has to send cases of transmission to the Ministry of Internal Affairs for further investigation), the people under investigation will be immediately provided with People PLUS contacts in order to obtain advice on how to protect themselves during an investigation.
As a result, there was a 40% decrease in the number of criminal prosecutions in the country (19 for the 1st quarter of 2018) and 49% for the Gomel region (12 for the first quarter of 2018), compared to 2017.
People PLUS notes that in the criminal laws of other countries there is the possibility of a person living with HIV to be released from criminal liability if they disclose and receive consent from another person and/or took appropriate measures to greatly reduce the risk of transmission. The application of this rule, as prescribed in the law, will protect the rights and interests of people living with HIV in Belarus. Though ultimately, this is not enough to counteract the damage to the HIV response caused by criminalisation.
A proposal on introducing similar amendments to Article 157 put forward by People PLUS was discussed at a recent meeting of the Parliamentarian Commission on Health, Physical Culture, Family and Youth Policy. The Ministry of Health of the Republic of Belarus sent a letter to the Parliament in support of the initiative. The Commission decided to submit it for discussion in the autumn session of the Parliament.
People PLUS have arranged a meeting with the Chairman of the Gomel Regional Court, S.M. Shevtsov, in order to reduce the number of ongoing cases and to get support to further changes in legislation.
Parliamentary hearings are expected to take place in Autumn 2018.
Dismantling HIV Criminalization: A Panel Discussion
LA MAMA GALLERIA
Dismantling HIV Criminalization brought together activists and advocates working to end practices that punish and incarcerate people living with HIV, linking Visual AIDS’ summer exhibition Cell Countto the ongoing movement against HIV criminalization.
The panel featured a discussion between Kate Boulton of the Center for HIV Law and Policy, Kenyon Farrow of TheBody.com, Abdul-Aliy Muhammad of the Black and Brown Workers Collective, and Robert Suttle of the Sero Project.
Kate, Kenyon and Robert had just returned from the 2018 HIV is Not a Crime Conference in Indianapolis, where activists from around the country gathered to build a national movement against HIV criminalization.
Dismantling HIV Criminalization was dedicated to David Plunkett, a survivor of HIV criminalization who passed away in 2018. After five years in prison, David’s successful appeal in 2012 set a legal precedent in New York that the saliva of a person with HIV could not be characterized as a deadly weapon. David contributed an essay to the catalog for Cell Count, reflecting on his experience facing HIV criminalization. The catalog is available for purchase at the Visual AIDS store.
Kate Boulton is a Staff Attorney at the Center for HIV Law and Policy, where she focuses on HIV criminal law reform and the overrepresentation of people living with HIV in the criminal legal system. She has particular interest in the intersection between HIV criminalization and the criminalization of sex work, and recently spearheaded the creation of an advocacy toolkit addressing this issue. From 2007 to 2012, Kate served with the Centers for Disease Control and Prevention, where her work centered on migrant health and infectious disease. She earned her JD from Harvard Law School and her MPH from the University of Michigan.
Kenyon Farrow is the senior editor with TheBody.com and TheBodyPro.com. Kenyon has a long track record working in communities impacted by HIV as an activist, writer, and strategist. Prior to joining TheBody.com, he served as U.S. & Global Health Policy director for Treatment Action Group (TAG), where he led a research project to explore the role of community mobilization in the U.S. HIV response and helped develop strategies for southern jurisdiction’s ending-the-epidemic campaigns. Kenyon has also worked on campaigns large and small, local, national, and global on issues related to criminalization/mass imprisonment, homelessness, and LGBT rights. He is the co-editor of the book Letters From Young Activists: Today’s Rebels Speak Out. His work has also appeared on websites and in publications such as The Body.com, POZ, The Atlantic, TheGrio, Colorlines, ReWire News, The American Prospect, and AlterNet.
Abdul-Aliy Muhammad is a Black queer poz non-binary jawn* from Philadelphia, PA. They’ve worked in the field of HIV prevention for 6 1/2 years and currently work as an organizer with the Black and Brown Workers Collective and does anti-oppression trainings with the BlaQollective. Abdul-Aliy is releasing A Flower Left To Wilt, their first poetry book, on October 26, 2018.
Robert Suttle is the Assistant Director of the SERO Project, a network of people living with HIV and allies fighting for freedom from stigma and injustice. He oversees the community outreach and education and coordinates Sero’s HIV Criminalization Survivors Network.
You care about Criminalisation (You just don't know it yet): A site-specific project by Avram Finkelstein for Visual AIDS
YOU CARE ABOUT HIV CRIMINALIZATION (YOU JUST DON’T KNOW IT YET)* is a site-specific project by artist/activist and SILENCE=DEATH co-creator Avram Finkelstein for Visual AIDS, created for the 2018 New York City Pride March.
This past Sunday, Visual AIDS was involved in the NYC Pride March for the first time in decades, distributing over 7,500 copies of the newly commissioned artistic broadsheet project about the stakes of HIV criminalization to thousands of people along the march route.
The criminal justice system considers HIV a deadly weapon and in many states exposing someone to HIV is a crime, regardless of condom use, viral load, or actual risk of transmission.
For people living with HIV, a contentious relationship, a personal misunderstanding or even a minor infraction of the law can lead to prison sentences of over thirty years, sensationalized media coverage, and registration as a sex offender.**
Know the facts. AIDS is not over. HIV criminalization can be.
* Courtesy of HIV Is Not a Crime Flash Collective
** Courtesy of Sero Project
Visual AIDS has been deeply inspired by the significant strides made by activists working against HIV criminalization over the past several years and hope that this project will raise awareness and inspire people to take action.
Visual AIDS would like to sincerely thank the dozens of volunteers who joined us at the NYC Pride March this year for their energy and efforts to support the project and advocate against HIV criminalization. We also thank Avram Finkelstein for his visionary collaboration on this project.
Mexico: Supreme Court finds Veracruz law criminalising ‘wilful transmission’ of HIV and STIs to be unconstitutional
The full ruling is not yet available, but according to a news story published yesterday in 24 Horas.
…it was pointed out that the criminal offense is “highly inaccurate” because it does not establish what or what is a serious illness, besides it is not possible to verify the fraud in the transmission [and] that although the measure pursued the legitimate aim of protecting the right to health, especially for women and girls, the measure did not exceed the analysis of need because it was not ideal and optimal for the protection of that purpose, especially as [Veracruz] already criminalised the ‘willful putting at risk of contagion of serious illnesses’…
The Minister President of the Court, Luis María Aguilar Morales, took up the recommendations of the Joint United Nations Program on HIV / AIDS and the Oslo Declaration on HIV Criminalisation, regarding the criminalization of HIV, and argued that this article left to the will of the investigating authority to decide which diseases will be considered as serious and which will not, going against the principle of legality, which implies that the crimes cannot be indeterminate or ambiguous.
In this case, the President said, the article did not establish whether STIs are only those considered serious or any, regardless of their severity. In turn, the justices determined that the resolution has a retroactive effect, that is, that those persons tried under the offense established by this article, the resolutions are invalidated.
Background
On August 4, 2015, the Congress of the State of Veracruz approved an amendment to Article 158 of the Criminal Code in order to add the term Sexually Transmitted Infections, which included HIV and HPV.
It provided for a penalty ranging from 6 months to 5 years in prison and a fine of up to 50 days of salary for anyone who “willfully” infects another person with a disease via sexual transmission.
The amendment, proposed by the deputy Mónica Robles Barajas of the Green Ecologist Party of Mexico, said the legislation was aimed at protecting women who can be infected by their husbands. “It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.
On February 16, 2016, the National Human Rights Commission responded to the request of the Multisectoral Group on HIV / AIDS and STIs of the state of Veracruz and other civil society organizations, and filed an action of unconstitutionality against the reform in the Supreme Court of Justice of the Nation, which it said does not fulfill its objective of preventing the transmission of sexual infections to women and girls, but rather creates discrimination of people living with HIV and other STIs.
In October 2016, following a press conference at the National Commission on Human Rights (pictured above) that generated a great deal of media coverage, including a TV report, HIV JUSTICE WORLDWIDE delivered a letter to the Mexican Supreme Court highlighting that a law such as that of Veracruz does not protect women against HIV but rather increases their risk and places women living with HIV, especially those in positions vulnerable and abusive relationships, at disproportionate risk of both proseuction and violence.
We applaud the declaration of the Supreme Court of Justice of the Nation, which gives us the reason for the unconstitutionality request, shared with the National Commission of Human Rights; For this reason, we suggest to the deputies of the Congresses of the State that before legislating, they should be trained in the subject and that they do not forget that their obligation is to defend Human Rights, not to violate them.
Finally, the Mexican Network against the Criminalization of HIV recognizes that there are still many ways to go and many battles to fight, but we can not stop celebrating this important achievement.
Edwin Bernard (HIV JUSTICE WORLDWIDE) and Patricia Ponce (Grupo Multisectorial Veracruz) presenting the letter to Supreme Court of the Nation, Mexico City.
Read the English text of the HIV JUSTICE WORLWIDE amicus letter below.
HIV JUSTICE WORLDWIDE
This is a letter of support from HIV JUSTICE WORLDWIDE[1] to Grupo Multi VIH de Veracruz / National Commission of Human Rightswho are challenging Article 158 of Penal Code of the Free and Independent State of Veracruz that criminalises ‘intentional’ exposure to sexually transmitted infections or other serious diseases, on the grounds that this law violates a number of fundamental rights: equality before the law; personal freedom; and non-discrimination.
As a coalition of organisations working to end the overly broad use of criminal laws against people living with HIV, we respectfully share Grupo Multi VIH de Veracruz’s concerns around Article 158 which potentially stigmatises people with sexually transmitted diseases and criminalises ‘intentional’ exposure to sexually transmitted infections (potentially including HIV) or other serious diseases.
All legal and policy responses to HIV (and other STIs) should be based on the best available evidence, the objectives of HIV prevention, care, treatment and support, and respect for human rights. There is no evidence that criminalising HIV ‘exposure’ has HIV prevention benefits. However, there are serious concerns that the trend towards criminalisation is causing considerable harm.
Numerous human rights and public health concerns associated with the criminalisation of HIV non-disclosure and/or potential or perceived exposure and/or transmission have led the Joint United Nations Programme on HIV/ AIDS (UNAIDS) and the United Nations Development Programme (UNDP),[2] the UN Special Rapporteur on the right to health,[3] the Global Commission on HIV and the Law[4] and the the World Health Organization[5], to urge governments to limit the use of the criminal law to extremely rare cases of intentional transmission of HIV (i.e., where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it). They have also recommended that prosecutions [for intentional transmission] “be pursued with care and require a high standard of evidence and proof.” [6]
In 2013, UNAIDS produced a comprehensive Guidance Note to assist lawmakers understand critical legal, scientific and medical issues relating to the use of the law in this way.[7] In particular, UNAIDS guidance stipulates that:
“[I]ntent to transmit HIV cannot be presumed or solely derived from knowledge of positive HIV status and/or non-disclosure of that status.
Intent to transmit HIV cannot be presumed or solely derived from engaging in unprotected sex, having a baby without taking steps to prevent mother-to-child transmission of HIV, or by sharing drug injection equipment.
Proof of intent to transmit HIV in the context of HIV non-disclosure, exposure or transmission should at least involve (i) knowledge of positive HIV status, (ii) deliberate action that poses a significant risk of transmission, and (iii) proof that the action is done for the purpose of infecting someone else.
Active deception regarding positive HIV-status can be considered an element in establishing intent to transmit HIV, but it should not be dispositive on the issue. The context and circumstances in which the alleged deception occurred—including the mental state of the person living with HIV and the reasons for the alleged deception— should be taken into consideration when determining whether intent to transmit HIV has been proven to the required criminal law standard.”
Moreover, where criminal liability is extended to cases that do not involve actual transmission of HIV (contrary to the position urged by UNAIDS and other experts), such liability should, at the very bare minimum, be limited to acts involving a “significant risk” of HIV transmission. In particular, UNAIDS guidance contains explicit recommendations against prosecutions in cases where a condom was used, where other forms of safer sex were practiced (including oral sex and non-penetrative sex), or where the person living with HIV was on effective HIV treatment or had a low viral load. Being under treatment or using other forms of protections not only show an absence of malicious intent but also dramatically reduces the risks of transmission to a level close to zero. Indeed, a person under effective antiretroviral therapy poses – at most – a negligible risk of transmission[8] and is therefore no different from someone who is HIV-negative.
Moreover, there is growing body of evidence[9] that such laws that actually or effective criminalise HIV non-disclosure, potential or perceived exposure, or transmission, negatively impact the human rights of people living with HIV due to:
selective and/or arbitrary investigations/prosecutions that has a disproportionate impact on racial and sexual minorities, and on women.
confusion and fear over obligations under the law;
the use of threats of allegations triggering prosecution as a means of abuse or retaliation against a current or former partner;
improper and insensitive police investigations that can result in inappropriate disclosure, leading to high levels of distress and in some instances, to loss of employment and housing, social ostracism, deportation (and hence also possibly loss of access to adequate medical care in some instances) for migrants living with HIV in some cases;
limited access to justice, including as a result of inadequately informed and competent legal representation;
sentencing and penalties that are often vastly disproportionate to any potential or realised harm, including lengthy terms of imprisonment, lifetime or years-long designation as a sex offender (with all the negative consequences for employment, housing, social stigma, etc.);
stigmatising media reporting, including names, addresses and photographs of people with HIV, including those not yet found guilty of any crime but merely subject to allegations.
In addition, there is no evidence that criminalising HIV (or other sexually transmitted infections) help protect women and girls from infections.
Women are often the first in a relationship to know their HIV status due to routine HIV testing during pregnancy, and are less likely to be able to safely disclose their HIV-positive status to their partner as a result of inequality in power relations, economic dependency, and high levels of gender-based violence within relationships.[10]
Such a law does nothing to protect women from the coercion or violence that effectively increases the risk of HIV transmission. On the contrary, such laws place women living with HIV, especially those in vulnerable positions and abusive relationships, at increased risks of both prosecution and violence.
Some evidence suggests that fear of prosecution may deter people, especially those from communities highly vulnerable to acquiring HIV, from getting tested and knowing their status, because many laws only apply for those who are aware of their positive HIV status.[11] HIV criminalisation can also deter access to care and treatment, undermining counselling and the relationship between people living with HIV and healthcare professionals because medical records can be used as evidence in court.[12]
Finally, there is evidence[13] of an additional negative public health impact of such laws in terms of:
increasing HIV-related stigma, which has an adverse effect on a person’s willingness to learn about, or discuss, HIV; and
undermining the importance of personal knowledge and responsibility (correlative to degree of sexual autonomy) as a key component of an HIV prevention package, when instead prevention of HIV within a consensual sexual relationship is – and should be perceived as – a shared responsibility.
We hope that the Mexico Supreme Court of Justice takes our concerns and all of this evidence into account when considering the Constitutional Challenge.
Yours faithfully,
Edwin J Bernard, Global Co-ordinator, HIV Justice Network
on behalf of all HIV JUSTICE WORLDWIDE partners: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO).
[1] HIV JUSTICE WORLDWIDE is an initiative made up of global, regional, and national civil society organisations working together to end overly broad HIV criminalisation. The founding partners are: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO). The initiative is also supported by Amnesty International, the International HIV/AIDS Alliance, UNAIDS and UNDP.
[2] UNAIDS. Policy Brief: Criminalisation of HIV Transmission, August 2008; UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.
[3] Anand Grover. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, June 2010.
[4] Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.
[5] WHO. Sexual health, human rights and the law. June 2015.
[6] Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.
[7] UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.
[8] A.J. Rodger et al., “Sexual activity without condoms and risk of HIV transmission in serodifferent couples when the HIV-positive partner is using suppressive antiretroviral therapy,” JAMA 316, 2 (12 July 2016): pp. 171–181.
[10] Athena Network. 10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women. 2009.
[11] O’Byrne P et al. HIV criminal prosecutions and public health: an examination of the empirical research. Med Humanities 2013;39:85-90 doi:10.1136/medhum-2013-010366
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