Global: AIDS 2010 round-up part 2: Posters

This selection of posters presented in Vienna follows up from my previous AIDS 2010 posting on the sessions, meetings and media reporting that took place during last month’s XVIII International AIDS Conference. I’ll be a highlighting a few others in later blog posts, but for now here’s three posters that highlight how the law discriminates; why non-disclosure is problematic to criminalise; and how political advocacy can sometimes yield positive change.

In Who gets prosecuted? A review of HIV transmission and exposure cases in Austria, England, Sweden and Switzerland, (THPE1012) Robert James examines which people and which communicable diseases came to the attention of the criminal justice system in four European countries, and concludes: “Men were more likely than women to be prosecuted for HIV exposure or transmission under criminal laws in Sweden, Switzerland and the UK. The majority of cases in Austria involved the prosecution of female sex workers. Migrants from southern and west African countries were the first people prosecuted in Sweden and England but home nationals have now become the largest group prosecuted in both countries. Even in countries without HIV specific criminal laws, people with HIV have been prosecuted more often than people with more common contagious diseases.”Download the pdf here.

In Responsibilities, Significant Risks and Legal Repercussions: Interviews with gay men as complex knowledge-exchange sites for scientific and legal information about HIV (THPE1015), Daniel Grace and Josephine MacIntosh from Canada interviewed 55 gay men, some of whom were living with HIV, to explore issues related to the criminalisation of non-disclosure, notably responsibilities, significant risks and legal repercussions. Their findings highlight why gay men believe that disclosure is both important and highly problematic. Download the pdf here.

In Decriminalisation of HIV transmission in Switzerland (THPE1017), Luciano Ruggia and Kurt Pärli of the Swiss National AIDS Commission (EKAF) – the Swiss statement people – describe how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law. A new Law on Epidemics removes Article 231, leaving only intentional transmission as a criminal offence, and will be deabted before the Swiss Parliament next year. Download the pdf here.

Germany: Nadja Benaissa trial is a distracting sideshow

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

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

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

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

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

Silvia Petretti’s blog post asks some very good questions

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

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

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

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

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

Global: AIDS 2010 round-up part 1: sessions, meetings and media reports

A remarkable amount of advocacy and information sharing took place during the XVIII International AIDS Conference held in Vienna last month. Over the next few blog posts, I’ll be highlighting as much as I can starting with a round-up of sessions, meetings, and media reports from the conference. A separate blog post will highlight posters, a movie screening and some inspirational personal meetings.

Sunday: Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward

A meeting that I co-organised (representing NAM) along with the Global Network of People Living with HIV (GNP+) and the Canadian HIV/AIDS Legal Network received quite a lot of coverage.

Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward was a great success with many of the 80+ attendees telling me it was Vienna highlight. The entire meeting, lasting around 2 1/2 hours, has been split into eight videos: an introduction; six presentations; and an audience and panel discussion. The entire meeting can also be viewed at the NAM and Legal Network websites, with GNP+ soon to follow.

Reports from the meeting focusing on different parts of the meeting were filed by NAM and NAPWA (Aus) and I was interviewed by Mark S King for his video blog for thebody.com.

Richard Elliott of the Canadian HIV/AIDS Legal Network, Moono Nyambe from GNP+ and UNAIDS’ Susan Timberlake – all of whom took part in the meeting – were interviewed for a piece in Canada’s Globe and Mail, with the headline, U.S., Canada lead world in prosecuting those who transmit AIDS virus: Criminal charges are justified only when infection is intentional, activists contend.

The same day, an editorial in the Globe and Mail completely undermined the rather balanced article by stating, quite bluntly

Disclosing one’s status is, of course, a difficult and emotional journey, fraught with potentially negative consequences. HIV-positive people can be marginalized, and discriminated against in terms of housing, employment and social relationships. However, the collective rights of this minority group cannot take precedence over their individual responsibility not to infect others.

It concluded

But in Canada the law is clear: Exposure without disclosure is a crime. And that is a good thing.

Judging by the comments left by readers of both articles, although there is some sympathy for the person with HIV, there’s a long way to go before Canadian hearts and minds are won over by the anti-criminalisation advocacy movement.

Wednesday: Policing Sex and Sexuality: The Role of Law in HIV

Lucy Stackpool-Moore (IPPF) and Mandeep Dhaliwal (UNDP)co-chaired a satellite session on the Wednesday that included presentations by Anand Grover, UN Special Rapporteur on Right to Health, and my colleague Robert James of Birkbeck College, University of London.

Thursday: HIV and Criminal Law: Prevention or Punishment?

This debate included discussion of criminalisation from the point of view of increased stigma. Lucy Stackpool-Moore again contributed. The session was not only recorded by the rapporteur, Skhumbuzo Maphumulo, but also reported on by PLUS News.

Thursday: Leaders against Criminalization of Sex Work, Sodomy, Drug Use or Possession, and HIV Transmission

This was the session with the highest profile names (rapporteur summary here). Chaired by Stephen Lewis, Founder of AIDS Free World, it was left to none other than Festus Mogae, Former President of Botswana, and a member of the Global Commission on HIV and the Law, to make a statement against the criminalisation of HIV exposure and transmission: “Criminalisation of HIV transmission is…futile”, he said, quite a few times. (Audio of his statement, at around 38:00, can be heard here).

Although it was mostly a repetition of some of the well-worn public health and human rights reasons already presented two years earlier by Edwin Cameron at AIDS 2008, it is significant that a former president of an African country made this statement, given the ‘legislation contagion‘ that has occurred on that continent. President Mogae noted that he had written to some of his estwhile colleagues pleading with them not to pass HIV-specific laws in their countries. With more than 25 African countries with such laws on the statute books and at least another eight African countries considering them, I think they need some more convincing.

Thursday: Where HIV Is a Crime, Not Just a Virus!

This was the only oral abstract session at AIDS 2010 dedicated exclusively to the criminalisation of HIV exposure and transmission, and I was honored to have two abstracts represented. The rapporteur summary is here.

I’ve already included a blog posting on my presentation, which you can see here. The other presentations included Criminalization of HIV transmission and exposure and obligatory testing in 8 Latin American countries, presented by Tamil Rainanne Kendall. (Audio and slides here); Tanzania case study on how AIDS law criminalizes stigma and discrimination but also stigmatizes by criminalizing deliberate HIV infection, presented by Millicent Obaso (Audio and slides here); and If there is no risk and no harm there should be no crime. Legal, evidential and procedural approaches to reducing unwarranted prosecutions of people with HIV for exposure and transmission, presented by Robert James (and co-authored by yours truly). (Audio and slides here).

The session was also reported on by aidsmap.com.

Thursday: Late Breakers (Track F)

This session included three oral abstracts on criminalisation of HIV exposure and transmission.

A quantitative study of the impact of a US state criminal HIV disclosure law on state residents living with HIV, presented by Carol Galletly. (Audio and slides here).

Roger Pebody of aidsmap.com provides an excellent summary of her findings here

Under [Michigan] state legislation, people with HIV are legally obliged to disclose their HIV status before any kind of sexual contact. Disclosure is meant to occur before sexual intercourse “or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body”. This would include even fingering or the use of a sex toy.

Carol Galletly reported on a study with 384 people with HIV who live in Michigan (but recruitment methods and demographics were not fully described). Three quarters of respondents were aware of the law.

She wanted to see if the existence of the law had any impact on her respondents’ behaviour. Comparing those who were aware of the law with those who were not, people who knew about the law were no more likely to disclose their HIV status to sexual partners. Moreover they were not less likely to have risky sex.

On the other hand, approximately half of participants believed that the law made it more likely that people with HIV would disclose to sex partners. Having this belief was associated with being a person who did disclose HIV status to partners.

In fact a majority of participants supported the law. Individuals who Gallety characterised as possibly being marginalised were more likely to support the law: women, non-whites, people with less education and people with a lower income.

The two other presentations were: HIV non-disclosure and the criminal law: effects of Canada’s ‘significant risk’ test on people living with HIV/AIDS and health and social service providers, presented by Eric Mykhalovskiy (Audio and slides here) and Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso presented by Patrice Sanon (Audio and slides here).

Other media reports

Other reports mentioning the criminalisation of HIV exposure and transmission published during the conference include:

A piece in the Montreal Gazette, headlined, Advocates raise concerns over prosecuting HIV-positive people

The troubling increase in the number of new HIV cases in Canada may be attributed to the country’s reputation of being a world leader in prosecuting HIV-positive people who fail to disclose their status, according to one group of AIDS advocates. “We’re looking at rising numbers of infection, especially among certain risk groups,” said Ron Rosenes, vice chair of Canadian Treatment Action Council. “And now we’re looking at the criminalization issue as one of the reasons people have been afraid to learn their status.”

Totally unproven, of course, but a great hook to hang the story on.

There was also a round-up story focusing on the broader issue of criminalisation (of drug use, same-sex sex, sex work) that mentioned HIV exposure and transmission in passing on this blog post on RH Reality Check.

Finally, an article in CMAJ interviewed Richard Elliott (again!) and highlighted some of the advocacy work at AIDS 2010 as it discussed the ongoing debate in Canada regarding the use of the criminal law to prosecute non-disclosure.

Global: ‘Where HIV is a crime, not just a virus’ – updated Top 20 table and video presentation now online

Where HIV Is a Crime, Not Just a Virus from HIV Action on Vimeo.

Here is my presentation providing a global overview of laws and prosecutions at the XVIII International AIDS Conference, Vienna, on 22 July 2010.

Abstract: Where HIV is a crime, not just a virus: a global ranking of prosecutions for HIV non-disclosure, exposure and transmission.

Issues: The global (mis)use of the criminal law to control and punish the behaviour of PLHIV was highlighted at AIDS 2008, where Justice Edwin Cameron called for “a campaign against criminalisation”. However advocacy on this vitally important issue is in its infancy, hampered by lack of information on a local, national and international level.

Description: A global overview of prosecutions to December 2009, based on data from GNP+ Global Criminalisation Scan (http://criminalisation.gnpplus.net); media reports collated on criminalhivtransmission.blogspot.com and WHO Europe pilot human rights audit. Top 20 ranking is based on the ratio of rate per year/per HIV population.

Lessons learned: Prosecutions for non-intentional HIV exposure and transmission continue unabated. More than 60 countries have prosecuted HIV exposure or transmission and/or have HIV-specific laws that allow for prosecutions. At least eight countries enacted new HIV-specific laws in 2008/9; new laws are proposed in 15 countries or jurisdictions; 23 countries actively prosecuted PLHIV in 2008/9.

Next steps: PLHIV networks and civil society, in partnership with public sector, donor, multilateral and UN agencies, must invest in understanding the drivers and impact of criminalisation, and work pragmatically with criminal justice system/lawmakers to reduce its harm.

Video produced by www.georgetownmedia.de

This table reflects amended data for Sweden provided by Andreas Berglöf of HIV Sweden after the conference, relegating Sweden from 3rd to 4th. Its laws, including the forced disclosure of HIV-positive status, remain some of the most draconian in the world. Click here to download pdf.

Global: Four anti-criminalisation advocacy resources launched at AIDS 2010

The XVIII International AIDS Conference held last week in Vienna was a hotbed of anti-criminalisation advocacy, including an extremely well-attended and well-received pre-conference meeting – Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward – that I co-organised on behalf of NAM, along with GNP+ and the Canadian HIV/AIDS Legal Network. We’re working on editing the video of the six presentations and panel discussions right now, and this should be ready later this week.

I’m also working on an article for NAM’s HIV Treatment Update that will synthesise all of the data and advocacy presented at the conference, and over the next week or so will be adding blog posts that highlight some of the work that I couldn’t include in the piece, as well as media reports focusing on criminalisation at the conference.

In the meantime, I’d like to draw your attention to four major advocacy resources that were launched at the conference.

HIV and the criminal law is a new online resource that I wrote and edited for the UK HIV information charity, NAM, and launched at AIDS 2010 in Vienna. A book version will be available in September 2010. Pre-order your copy here.

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

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

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

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

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

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

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

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

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

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

The 2010 Global Criminalisation Scan Report (GNP+)

The 2010 Global Criminalisation Scan Report from the Global Network of People Living with HIV (GNP+) gives a global overview of the extent to which criminal and other laws have been used to prosecute people living with HIV for HIV transmission and exposure.

The full impact of these laws on the human rights of people living with HIV and on access to treatment, care and support has yet to be fully understood. However, the evidence presented here shows that there is no correlation between the HIV prevalence in a country and the willingness of countries to use criminal laws and other punitive measures to regulate transmission.

The report gives examples of instances where people living with HIV have expressed concerns about negative consequences that come from the overly broad use of laws in cases of transmission and exposure to HIV. This report highlights the urgent need for government reform and calls for the guided application of expert evidence and legal opinion to stem the swell of prosecutions and to counter the false premise of the perceived benefit of HIV-specific criminal laws.

Download a pdf of the Report here.

Responding to the Criminalization of HIV Transmission or Exposure: Resources for lawyers and advocates (Prepared by: Canadian HIV/AIDS Legal Network, AIDES, Groupe sida Genève, GNP+)

In response to the increasing use of criminal law internationally, as well as to the great need to develop tools for lawyers representing people living with HIV, this kit provides both informative documentation to support lawyers in the preparation of their cases and selected publications that can ultimately be presented in court.

Table of Contents

Introduction

Detailed table of contents

Publication information

Section 1: Living with HIV

Section 2: HIV transmission: the science

Section 3: HIV/AIDS in a legal context: the use of criminal law in cases of HIV transmission or exposure

Section 4: International recommendations on the criminalization of HIV
transmission and exposure

Section 5: Key court decisions internationally

Section 6: Criminal law and HIV transmission and exposure at the national level

Section 7: Additional resources

To view the entire resource visit the Canadian HIV/AIDS Legal Network website. (Aussi disponible en français )

HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario (Eric Mykhalovskiy, Glenn Betteridge and David McLay).

This report contributes to the development of an evidence-informed approach to using the criminal law to address the risk of the sexual transmission of HIV in the province of Ontario.

In recent years, the application of criminal law powers to circumstances of HIV exposure in sexual relations has emerged as a key HIV-related policy issue. In Ontario, people living with HIV/AIDS (PHAs), AIDS Service Organizations (ASOs), human rights advocates and others have raised concerns about the expansive use of the criminal law in addressing HIV-related sexual offences. They have raised questions about fairness in the application of the criminal law and about its negative consequences for PHAs and established public health and community-based HIV prevention strategies.

This report is rooted in these concerns. It responds to them in two ways. First, it explores various forms of evidence relevant to a thorough policy consideration of the use of the criminal law in circumstances of sexual exposure to HIV. Second, it proposes policy options for addressing the problems posed by the criminalization of HIV non-disclosure in Ontario.

This report emphasizes that uncertainty in the criminal law formulation of the obligation to disclose HIV+ status is foundational to current problems in the use of the criminal law to regulate the risk of the sexual transmission of HIV in Ontario.

It further emphasizes policy issues and problems arising at the nexus of science and criminal justice, in particular, those posed by the inconsistent use of complex scientific research by courts in deciding cases of alleged HIV non-disclosure.

Finally, the report underscores that the criminalization of HIV non-disclosure hinders established HIV prevention efforts and contributes to HIV-related stigma.

Download a pdf of the report here.

How could she go on living as if weren’t there [Trailer] (Sweden, 2010)

It is 1986. Lillemor is 19 And goes to France. She falls in love there; a love which results in her becoming HIV infected. Lillemor represses the fact that she has a lethal infection. She gets married and has children. She cannot bring herself to tell her husband that she is HIV positive. One day he finds out. Tabloid press and tv channels refer to her as the “HIV woman”. Lillemor’s husband divorces her, she loses custody of their children, and she loses her freedom.

Lillemor has now served a 30-month prison sentence for attempted grievous bodily harm. She was convicted for having had unprotected sex with her husband and for having gone through pregnancy and given birth to two children without first informing medical staff of the fact that she was HIV positive. Neither her ex-husband nor their children, now 7 and 8 years old, have contracted HIV.

This full length (73 minute) feature documentary is a stunning, heartbreaking exposition of how the stigma of HIV leads to Lillemor’s functional denial and ultimately her criminalisation, prosecution, conviction and incarceration.

PRODUCER/DIRECTOR INGELA LEKFALK
CINEMATOGRAPHY ANDERS BOHMAN STEFAN LARSSON
EDITING KERSTI GRUNDITZ
MUSIC LOUISE HOFFSTEIN
LARS PAULIN LASSE ENGLUND PETER KVINT
CHRISTOFFER DEMBY RESEARCH JENNY SJUNNESSON

More information: http://lekfalkab.se/eng/film_hurkundehon.html and at IMDB

Edwin J Bernard: Where HIV Is a Crime, Not Just a Virus (AIDS 2010)

Edwin J Bernard presents a global overview of laws and prosecutions at the XVIII International AIDS Conference, Vienna, 22 July 2010.

Abstract: Where HIV is a crime, not just a virus: a global ranking of prosecutions for HIV non-disclosure, exposure and transmission.

Issues: The global (mis)use of the criminal law to control and punish the behaviour of PLHIV was highlighted at AIDS 2008, where Justice Edwin Cameron called for “a campaign against criminalisation”. However advocacy on this vitally important issue is in its infancy, hampered by lack of information on a local, national and international level.

Description: A global overview of prosecutions to December 2009, based on data from GNP+ Global Criminalisation Scan (criminalisation.gnpplus.net); media reports collated on criminalhivtransmission.blogspot.com and WHO Europe pilot human rights audit. Top 20 ranking is based on the ratio of rate per year/per HIV population.

Lessons learned: Prosecutions for non-intentional HIV exposure and transmission continue unabated. More than 60 countries have prosecuted HIV exposure or transmission and/or have HIV-specific laws that allow for prosecutions. At least eight countries enacted new HIV-specific laws in 2008/9; new laws are proposed in 15 countries or jurisdictions; 23 countries actively prosecuted PLHIV in 2008/9.

Next steps: PLHIV networks and civil society, in partnership with public sector, donor, multilateral and UN agencies, must invest in understanding the drivers and impact of criminalisation, and work pragmatically with criminal justice system/lawmakers to reduce its harm.

Video produced by georgetownmedia.de

US: Obama administration calls for end to HIV-specific criminal laws

Fantastic news from the United States, courtesy of Todd Heywood at the Michigan Messenger. His article is reproduced in full below.

On Thursday I present my poster at AIDS 2010 analysing two years of US arrests and prosecutions, so this is extremely timely, and very exciting. It is also the first time I have added a ‘decriminalisation’ label to my keywords – a significant milestone!

From the National HIV/AIDS Strategy for the United States, July 2010.

An important step we can take is to ensure that laws and policies support our current understanding of best public health practices for preventing and treating HIV. At least 32 states have HIV-specific laws that criminalize behavior by people living with HIV. Some criminalize behavior like spitting and biting by people with HIV, and were initially enacted at a time when there was less knowledge about HIV’s transmissibility. Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status. Some laws criminalize consensual sexual activity between adults on the basis that one of the individuals is a person with HIV who failed to disclose their status to their partner. CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist. While we understand the intent behind such laws, they may not have the desired effect and they may make people less willing to disclose their status by making people feel at even greater risk of discrimination. In some cases, it may be appropriate for legislators to reconsider whether existing laws continue to further the public interest and public health. In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.

Recommendation 3.3 Promote public health approaches to HIV prevention and care: State legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.

Obama administration calls for end to HIV-specific criminal laws
Advocates call new strategy a ‘wonderful development’

By Todd A. Heywood
Michigan Messenger
7/20/10

Many HIV experts and advocates are applauding the nation’s first comprehensive National HIV/AIDS Strategy, issued on July 13 by the White House, because it calls for an end to state laws that criminalize the transmission of HIV.

Those laws date back to the late 1980s and early 90s, when the death toll from HIV infection was mounting and no medications were readily available to treat the viral infection.

“In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment,” the report says, after acknowledging the rationale behind passage of such laws. “CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist.”

Michigan is one of 32 states with HIV-specific criminal laws. In Michigan, it is a felony for a person with HIV infection to engage in sexual penetration “however slight” without first disclosing their HIV-positive status to the sex partner. The law includes the use of sex toys, which have never been shown to be a route of transmission for HIV. It does not, however, include sharing needles, which is an extremely effective way to transmit the virus, experts say.

National experts weigh in

“It is the first truly meaningful official statement on the issue of criminalization and the role of civil rights in addressing the HIV epidemic, and reflects both the advocacy of HIV civil rights advocates who consistently prioritized the issue, and the willingness of ONAP (Office of National AIDS Policy) staff to respond substantively and decisively,” Catherine Hanssens, executive Director of the HIV Law and Policy Center in New York.

Hanssens pointed out how the strategy’s implementation plan — which is a companion document to the strategy — goes beyond merely advising legislatures to re-visit their HIV-specific laws and contains specific goals to address HIV criminalization, including study by the Department of Justice.

“Individually and collectively, these actions can and should produce findings that HIV-specific criminal laws and prosecutions contravene prioritized public health goals; subject people with HIV to irrational, exceptionalist treatment and punishment solely on the basis of their known HIV status, and also consequently represent a violation of federal antidiscrimination laws created to protect those affected by HIV,” said Hanssens.

Bebe Anderson, director of the Lambda Legal Defense and Education Fund’s HIV Project, echoed Hanssens, calling the strategy and its implementation plan a “wonderful development.”

But she says individual states may struggle with addressing the laws.

“I think it will depend on each state and the political environment,” she noted.

Michigan lawmakers divided on HIV-specific criminal law

Anderson’s statement is reflective of the political reality in Michigan today. With the state House controlled by Democrats and the state Senate controlled by Republicans, lawmakers say that while these changes might be necessary, they will be difficult to achieve.

“If they don’t work, then we have to revisit them,” said House Speaker Andy Dillon of Redford Township of the HIV-specific criminal laws.

“Absolutely, we need to revisit them,” said Rep. Joan Bauer (D-Lansing). “I am open to looking at what is working and what is not.”

Mark Meadows (D-East Lansing) chairs the House Judiciary Committee and he too said he would revisit the laws. He said he felt it was still important to revisit Michigan’s bio-terrorism law to clarify it after a 45-year-old HIV-positive Clinton Township man was charged with the law for allegedly biting a neighbor during a fight. Those charges have since been dismissed by Macomb County Circuit Court Judge Peter Maceroni.

Meadows said prosecutions such as the Macomb case increase stigma against the HIV-positive community. He previously has called that prosecution “silly.”

But Republican law makers say not so quick.

State Sen. Tom George (R-Texas Township) chairs the Senate Health Policy Committee.

“I see these (calls to address specific laws– such as the HIV-specific criminal laws or nondiscrimination laws) as more of a political agenda and less of a public health issue,” George said. “I don’t think changing that or revisiting that is going to make a big difference like testing will.”

George, who is seeking the Republican nomination for governor and is a physician, is pushing legislation which will change Michigan’s law on HIV testing, which requires signed informed consent before an HIV test can be conducted. His legislation would make Michigan an opt-out state, meaning patients would give general consent for HIV testing when consenting for care and treatment. They could opt out of HIV testing, but only in writing.

Rep. Rick Jones (R-Grand Ledge) serves on the House Judiciary Committee. And while he has been a vocal critic of the HIV-as-terrorism prosecution, and previously said he was in favor of repealing the state criminal law on HIV disclosure, now says he no longer favors the move.

“After careful consideration and listening to the feelings of my constituents, I think you should have to disclose it,” says Jones. “Should it just be HIV? Absolutely not. It should include things that are much easier to transmit like Hepatitis and TB.”

Jones is the former sheriff of Eaton County and says he thinks that an HIV-positive person spitting at a police officer, and declaring the hope the officer is infected, should be criminalized, even though there is no known risk of infection from the act.

“It shows intent,” Jones said.

The National HIV/AIDS Strategy specifically cites criminalizing spitting as a concern.

“Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status,” the report states.

Jones admitted it is a crime already in Michigan to spit on a police officer, noting that he vividly recalled while a road officer having a suspect spit at him. That man, Jones said, ended up serving 30 days in jail for the incident.

Regardless of the how debate starts shaping up in Michigan, don’t expect the Michigan Department of Community Health to step into the fray anytime soon, says Debra Szwedja, acting director of the MDCH’s Division of Health, Wellness and Disease Control.

“Really, at this point in time, that is something the legislature will have to initiate,” Szwedja said.

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

The recent conviction of Austrian HIV denialist Barbara Seebald for:

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

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

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

Denialism and Criminalisation

by Matthew Weait

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

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

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

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

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

My own answer is no, for the following reasons.

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

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

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

UK: New Guidance for Police Investigating Criminal Transmission of HIV

I’m reproducing below a press release issued yesterday by the National AIDS Trust (NAT) about the new UK (with the exception of Scotland) guidance for police officers investigating allegations of criminal HIV transmission. We’ll hear more about the guidance – a world’s first – and how it was developed, at the International AIDS Conference in Vienna which begins on Sunday.

Police and HIV sector work together to produce guidance

New guidance has been produced to help police when investigating allegations of criminal transmission of HIV. The guidance provides police officers with basic facts about HIV and sets out advice on how to deal with complaints about reckless (or intentional) transmission of HIV in a fair and sensitive manner.

The new guidance from the Association of Chief Police Officers (ACPO) was developed by a working group which included police officers, representatives of the Crown Prosecution Service and the National Policing Improvement Agency, and the National AIDS Trust. Police across England, Wales and Northern Ireland will be expected to follow new guidance.

Ellie O’Connor, Detective Chief Inspector of the Metropolitan Police, comments;

“Investigations into the criminal transmission of HIV are extremely rare but we know they cause a lot of anxiety for the individuals involved. It is important police officers have an understanding HIV and what to do should someone make a complaint.

In producing this guidance we listened to the concerns of the HIV sector and worked in partnership with them. We strongly encourage all police forces to disseminate this guidance and ensure officers know to access it when a case occurs.”

Deborah Jack, Chief Executive of NAT, comments;

“Criminal investigations into HIV transmission worry many people with HIV, even though they occur only very occasionally. We are pleased that we have been able to work together with the police to produce guidance for their officers. The Association of Chief Police Officers took the issue very seriously.

The resulting guidance sets out a fair way to deal with these investigations that keeps in mind the particular sensitivities of HIV. This new guidance should serve to reduce the number of police investigations and reassure people living with HIV of what they can expect in the unlikely circumstance this occurs.”

For further information about this issue NAT and THT have produced a leaflet for people living with HIV – Prosecutions for HIV Transmission: A guide for people living with HIV in England and Wales.

Under the new guidance for police investigating criminal transmission of HIV, people living with HIV can expect:

to be treated supportively.

for their confidentially to be respected.

an investigation of reckless transmission only to be pursued if a complainant has been infected with HIV

for the case to be continually discussed with the Crown Prosecution Service to ensure only legitimate complaints are pursued.

contact with any other individuals relevant to the case to be initiated by trained staff at GUM clinics.

and uninterrupted access to medication in the event of being taken into custody.

If someone reports to police concerned that they have been exposed to HIV in the past 72 hours they will be referred to an open sexual health clinic or the nearest hospital Accident and Emergency Department to ask for PEP.

For a background study of early police investigations of alleged cases of HIV transmission see Policing Transmission by Terrence Higgins Trust.