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
Time to act: Over 150 organizations across Canada call on Federal and Provincial Governments to end unjust criminalization of HIV
For The First Time, The HIV Community And Other Concerned Organizations Are Calling On The Federal Government To Reform The Criminal Code.
TORONTO, November 27, 2017 — With World AIDS Day just a few days away, the Canadian Coalition to Reform HIV Criminalization (CCRHC) has released a joint Community Consensus Statement endorsed by over 150 organizations across the country, from the HIV sector and beyond. Developed through several months of cross-country consultation, the statement shows clear consensus against the current overly broad use of the criminal law against people living with HIV and the urgent need for action from federal, provincial and territorial governments.
For the first time, the HIV community and other concerned organizations are calling on the federal government to reform the Criminal Code. They are also calling on federal and provincial Attorneys General to develop sound prosecutorial guidelines to prevent further miscarriages of justice, and for training of police, prosecutors and judges.
A year ago, on World AIDS Day 2016, federal Justice Minister Jody Wilson-Raybould acknowledged that the “over-criminalization of HIV non-disclosure” contributes to stigma and undermines public health, and that the criminal justice system has not caught up to the existing science. Indeed, Canadian scientists have repeatedly expressed their concern about the misuse of the criminal law.
“That was a welcome statement by the Justice Minister,” said Chad Clarke, a member of the Coalition who has spoken publicly about the toll on him and his family of being prosecuted and imprisoned. “People living with HIV in Canada continue to be singled out for prosecution and sent to jail for allegedly not disclosing their status to a sexual partner even if they have no intent to harm their partners, take precautions to protect their partner and do not transmit the virus. People are being prosecuted even when there is little or no possibility of transmission.”
After a year of study, it is time to act.
The Community Consensus Statement declares that, in accordance with international guidance, criminal prosecutions should be limited to cases of actual, intentional transmission of HIV.
“With more than 200 prosecutions to date, Canada has the third-largest total number of recorded prosecutions for alleged HIV non-disclosure in the world, and one of the highest rates of prosecution in the world. This is simply not acceptable,” said Cécile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, a member of the Coalition. “People accused of HIV non-disclosure most often face charges of aggravated sexual assault, one of the most serious charges in the Criminal Code. Conviction carries a maximum penalty of life imprisonment and mandatory designation as a sex offender. This approach has been criticized both domestically and internationally, including by United Nations expert bodies.”
“People living with HIV in Canada deserve better and demand better,” said Alex McClelland, a member of the Coalition’s steering committee and a researcher at Concordia University whose current project documents the first-hand experience of people who have faced charges for allegedly not disclosing their HIV status. “Right now, lives are being ruined by an outdated and stigmatizing approach to criminal justice.”
“We can’t ignore how the misuse of the criminal law, including sexual assault charges, is harming some of those people living with HIV who are most vulnerable,” said Muluba Habanyama, a member of the Coalition who was born with HIV. “It is time that the federal and provincial ministers of justice take action and work with stakeholders—people living with HIV, HIV organizations and service providers, women’s rights advocates and scientific experts—to limit the unjust use of criminal law which discriminates against people living with HIV.”
The Community Consensus Statement comes shortly before the UNAIDS Executive Director arrives in Ottawa for an official visit in conjunction with World AIDS Day (from November 29 – December 1). UNAIDS has previously recommended much narrower limits on the use of the criminal law than is currently the case in Canada.
The Community Consensus Statement, including the full list of endorsers, is available online.
About The Canadian Coalition To Reform HIV Criminalization
The Canadian Coalition to Reform HIV Criminalization (CCRHC) is a national coalition of people living with HIV, community organizations, lawyers, researchers and others formed in October 2016 to progressively reform discriminatory and unjust criminal and public health laws and practices that criminalize and regulate people living with HIV in relation to HIV exposure, transmission and non-disclosure in Canada. The Coalition includes individuals with lived experience of HIV criminalization, advocates and organizations from across the country. It includes a steering committee on which a majority of members are people living with HIV.
Malawi: Human Rights Activists celebrate adoption of amended HIV Law that removes rights-infringing provisions (Press Release)
HUMAN RIGHTS ACTIVISTS CELEBRATE MALAWI’S ADOPTION OF AMENDED HIV LAW THAT REMOVES RIGHTS-INFRINGING PROVISIONS
Lilongwe – On Tuesday, 28 November, Malawi Members of Parliament voted to reject coercive and criminalising provisions that threatened human rights in a long-deliberated HIV (Prevention and Management) Bill.
Activists and people living with and affected by HIV celebrated outside Parliament after having protested for months against rights-infringing provisions in the HIV Bill, tabled earlier this year. The Bill, which had its origins in a 2008 Law Commission Report, included provisions to make HIV testing and treatment mandatory for select populations on a discriminatory basis, and provisions that would criminalise HIV exposure and transmission, amongst others.
Civil society and activists argued that these provisions would violate the Malawi Constitution, be at odds with international best practice, and compromise the country’s efforts to advance HIV treatment and prevention.
On Tuesday, Members of Parliament debated amendments to the Bill advanced by Members and its HIV Committee. Minister of Health, Hon. Atupele Muluzi, urged Members to endorse these amendments when adopting the Bill, emphasizing that criminalising HIV had negative public health implications. Parliament voted to support all the amendments proposed by the HIV Committee and, in addition, voted to delete a contentious provision relating to “deliberate infection” with HIV. After a second reading, the Bill was passed subject to these amendments.
Activists celebrate the passing of the amended HIV Bill today in Lilongwe. (Source SALC)
“It is thanks to women activists who fought to have their voices heard that Parliament has recognised that abandoning human rights protections will only drive vulnerability to HIV,” said Sarai-Chisala Tempelhoff of the Women Lawyers Association (WLA Malawi). “When the evidence tells us women and girls should be at the forefront of our response to HIV, it is important to understand the criminalisation would only increase the risk of violence and abuse that Malawian women face; strengthen prevailing gendered inequalities in healthcare and family settings; and further drive stigma, fear and discrimination around HIV.”
“Mandatory testing and treatment and criminalization of HIV transmission and exposure are counter-productive to reaching the goals of the HIV response in Malawi. We are glad our voices have been heard through the work of organisations like ICW Malawi, the Coalition of Women Living with HIV/AIDS (COWLHA), the Female Sex Workers Association, the Women Farmers Coalition and others. Human rights have prevailed today in Malawi.” said Clara Banya of the International Community of Women Living with HIV (ICW) Malawi.
“We are elated that Parliament has chosen to endorse a law based on evidence and reason and not on stigma and fear. It is people who are most marginalized in our society who would suffer most under coercive and criminalising laws – these are people who need society’s support, not punishment.” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA).
Gift Trapence, Executive Director of the Centre for the Development of People (CEDEP), agreed, “While we urgently need to embrace key populations to advance human rights and the HIV response in Malawi, the Bill was proposing to create further barriers. While the amended version adopted by Parliament does not speak to key populations directly, we must celebrate that at least it hasn’t added to the legal barriers as initially proposed.”
MacDonald Sembereka, Executive Director of the Mango Key Populations Network said, “As actors in the sector we urge for the prompt assent and implementation of the Act as it is long overdue.”
“We commend and support the incredible advocacy of Malawian civil society and women activists in particular who have refused to be silenced into accepting compromises on punitive laws and policies,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The role of human rights in an effective HIV response is as important now as it has always been.”
“While some provisions remain that are perplexing and of which we should remain wary (such as those placing duties on people living with HIV to adhere to treatment), Parliament’s acceptance of the amendments in the Act is a victory for citizens and supporters of human rights in Malawi who resisted efforts to enact the Bill in its original form at all costs,” said Annabel Raw, health rights lawyer at the Southern Africa Litigation Centre (SALC).
Laurel Sprague, Executive Director of Global Network of People Living with HIV (GNP+) said, “GNP+ applauds the remarkable community effort that focused on education, current science and best practices. Women living with HIV, sex workers, and women lawyers led the way in explaining why punitive laws harm the HIV response and ensuring that a human rights approach is at the centre of Malawi’s HIV response.”
Statement by:
The AIDS and Rights Alliance for Southern Africa (ARASA)
The Centre for the Development of People (CEDEP)
The Centre for Human Rights Education, Advice and Assistance (CHREAA)
The Global Network of People Living with HIV (GNP+)
The International Community of Women Living with HIV (ICW) Malawi
The MANGO Key Populations Network
The Southern Africa Litigation Centre (SALC)
Women Lawyers Association, Malawi
ENDS
FOR MORE INFORMATION:
Lesley Odendal (Communications Lead, AIDS and Rights Alliance for Southern Africa) Email: communications@arasa.info; Tel: + 27 72 960 8991.
Annabel Raw (Health Rights Lawyer, Southern Africa Litigation Centre) Email: AnnabelR@salc.org.za; Tel: +27 10 596 8538.
Mexico: First Spanish language ‘HIV is Not A Crime’ meeting leads to new Network and impressive early results
In October 2017 the first Spanish-language ‘HIV Is Not A Crime’ meeting took place in Mexico City, supported by the HIV JUSTICE WORLDWIDE coalition.
The two-day meeting brought together people living with HIV, activists, lawyers, human rights defenders, and academics from across Mexico – alongside HIV JUSTICE WORLDWIDE partners CNET+ (Belize), Sero Project (USA), and the HIV Justice Network – to discuss the current state of HIV criminalisation nationally, regionally and globally.
As well as learning about HIV criminalisation around the world; the global movement to end HIV criminalisation; and the importance of the leadership of Networks of People Living with HIV, participants discussed reform initiatives in the three states where specific problematic laws exist (Veracruz) or were recently proposed (and Quintana Roo and San Luis Potosí).
In 2015, the Congress of Veracruz approved a reform of the Penal Code in order to add to the crime “of contagion” the term “sexually transmitted infections” (STI), among which are HIV and HPV, to “try to prevent the transmission of such infections, mainly to (vulnerable) women and girls.” The penalty includes six months to five years in prison and a fine of up to 50 days minimum wage for anyone who “maliciously” infects another person with an STI.
In San Luis Potosí, the governor, Juan Manuel Carreras López, proposed reforms to the Criminal Code, including the creation of article 182 bis, to punish “the person knowing that he is a carrier of a sexually transmitted disease. ..) endangers the health of another person through sexual intercourse “. Thanks to quick action by local activists, the proposed reforms did not pass.
In Quintana Roo, last year Congresswoman Laura Beristain proposed reforming Article 113 of the Criminal Code to punish anyone who transmits HIV with up to 25 years in prison. A few weeks ago, following a meeting with activists including those who attend the ‘HIV is not a crime meeting’, she committed to dropping the proposal.
In addition to these HIV-specific laws, the meeting heard that 30 the 32 states that make up the Mexican Republic have a public health law that sanctions exposure to sexually transmitted infections. Only the states of Aguascalientes and San Luis Potosí do not have this law.
Among the key points in the Declaration, they note that the Mexican State is required to assume the commitment to guarantee an integrated response to HIV (prevention, timely diagnosis and comprehensive attention) and stresses that it is not the task of the judicial authorities to develop and implement measures to prevent transmission of HIV.
The declaration also emphasises that the criminalisation of HIV exposure through “risk or danger of HIV infection” and other public health statutes that appear in the laws of individual Mexican states are generating more harm than good in terms of impact on public health, in addition to preventing the guarantee of respect for the human rights of people with HIV.
HIV Panic in Florida Is Turning Into a Health Catastrophe
The spread ofHIV in Florida has outpaced any other state in the union, yet draconian laws turn getting tested into a risky legal gamble. Now a new initiative launched by Equality Florida aims to combat the virus through education, and maybe an update in the state’s legal statutes.
The HIV Advocacy Project hopes to better educate residents about the truth of living with HIV today — information Equality Florida hopes will convince lawmakers to update regulations that effectively expose individuals to criminal prosecution once their HIV status is known to them.
Alejandro Acosta is the coordinator for the project. He’s known his poz status for a while now. How long? He won’t say, in part because of the hefty risks that come with such disclosures in Florida. “I hesitate,” Acosta says, “because of how people can use that information.”
People living with HIV in the state can face up to 30 years in prison for failing to disclose their status to a consensual partner prior to any sexual contact, even if transmission is not possible. That means prosecutors can pursue convictions whether a partner contracts the virus or not, and whether or not the HIV-positive person uses a condom or has an undetectable viral load and cannot transmit the virus.
Three years ago a Palm Beach, Fla., prosecutor arrested one man and sought 10 separate charges for his alleged failure to disclose his status to one girlfriend. The prosecutor then went to the press, asking other members of the public to come forward if they’d had sex with the defendant in the previous eight years. Stories like that, Acosta says, do little to encourage people to get tested, since knowing one’s status is an essential element in the statute. That’s particularly troubling as Florida continues to see so many new transmissions, and those could just be the tip of the iceberg.
In 2016 alone, 4,972 people were newly diagnosed with HIV in Florida (more than any other state). Gay and bisexual men in Florida continue to live with a higher risk of transmission, as do trans women of color. Youth under 25, according to the Florida Department of Health, represented 16 percent of all new HIV infections in 2014. And Equality Florida estimates that over 20,000 people in the state are already HIV-positive but just don’t know it yet.
Hannah Willard, senior policy director for Equality Florida, says it’s important to acknowledge that HIV has “never stopped being an LGBTQ issue,” but it’s also “an issue of racial and economic injustice.” That’s one reason the Florida HIV Justice Coalition involves groups like Equality Florida and The Sero Project in collaboration with the Southern Poverty Law Center and the ACLU.
Florida’s HIV criminalization laws date back to the 1990 passage of the Ryan White Comprehensive AIDS Resources Emergency Act (or CARE Act); the federal law required states to criminalize deliberate transmission of disease. This was seven years before antiretroviral drugs turned HIV from a deadly disease to a manageable chronic condition and 17 years before the government officially announced that HIV-positive folks with undetectable viral loads could not transmit HIV. (That federal requirement has since been dropped from Ryan White.)
In 1997, Florida legislators added HIV to a list of diseases that were criminal not to disclose. That list also included other STIs like gonorrhea, herpes, and syphilis. The law provides confidentiality to those reporting a violation — a stipulation that activists say leaves room for misuse or abuse. A California study by the Williams Institute found that prosecutors disproportionately applied a similar law there to sex workers.
“We don’t yet know how these statutes are being used by law enforcement,” in Florida, Willard says, while noting some anecdotal evidence about reports motivated by revenge.
Acosta says poz individuals in the state fear a scorned lover could claim they weren’t told of their partner’s HIV status. Social stigma immediately taints those who are accused once allegations are made public, even if there’s no evidence that they failed to disclose their status. In a 2009 case, a woman faced prosecution based on multiple long-term relationships and was hit with separate charges for each individual sexual encounter.
Now two decades old, the Florida disclosure law hasn’t been updated, and therefore ignores conclusive evidence that those with HIV who are virally suppressed to undetectable levels are no longer at risk of transmitting HIV to sexual partners.
Acosta says there are significant repercussions to the way the law discourages people from finding out if they have HIV. He grew up in Puerto Rico and says two people he knew there died from HIV-related illnesses last year.
“Nobody should be dying of HIV these days,” he says. Proper and timely treatment can prevent HIV from entering the final, often terminal, stage of the disease (also known as AIDS).
But it still happens, particularly when people don’t realize they are HIV-positive until they are physically ill. That’s a failure in testing. Others have known they were HIV-positive but never realized it can be managed as a chronic condition. That’s an issue with education, and Acosta says a big part of his job will be making sure the public knows how to control transmission through proper health care.
“[I] worry about bad policy that makes access to treatment harder, discourages people from learning their status, or creates laws that are outdated and based on fear and stigma, not science,” Acosta says.
Willard is optimistic that policy opinions across the state’s political spectrum are beginning to change through effective lobbying. She notes a bill that would have changed the law to apply only when there was a “substantial risk of transmission” won a unanimous vote in the state Senate’s Criminal Justice Committee, but died before a full Senate vote. Still, it proved strong bipartisan support could be rallied. Willard says, “I’m very optimistic and see forward movement in 2018.”
Stopping HIV transmission in Florida also requires fighting social stigma. In a state with a large Latin immigrant population, that means challenging a number of prejudices: “You have a huge number of Haitians, Jamaicans, Salvadorans with different cultural, religious, and machismo issues,” Acosta says.
The impact hurricanes Irma and Maria will have on HIV prevention and treatment in Florida and Puerto Rico aren’t yet known, but will likely linger for years. Advocates like Acosta know their complex jobs are made more difficult by laws that put people in legal crosshairs for failing to disclose their HIV-positive status — unless they don’t know they are poz.
“It goes against every policy for public health because it incentivizes not getting tested,” Acosta says.
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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.)
