This session aimed at philanthropic funders discussed the growing global movement to end HIV criminalization – overly broad and/or vague criminal laws, that unjustly regulate, control, and/or punish people living with HIV solely based on their HIV status. The panel’s participants exemplify the uniqueness of the Robert Carr Fund model of incentivizing collaborative and joint efforts of networks across movements – who join into consortia of, for example, people living with HIV and human rights defenders/lawyers – and the model of linking activities at global, regional and national levels, which catalyzes a more aligned and impactful effect in resisting and fighting HIV criminalization.
Moderator: Sergey Votyagov, Robert Carr Fund for Civil Society Networks (RCF)
Introduction: Luisa Cabal, Joint United Nations Programme on HIV/AIDS (UNAIDS)
Panelists:
• Edwin Bernard, HIV Justice Network (HJN)
• Laurel Sprague, Global Network of People Living with HIV (GNP+)
• Lynette Mabote, AIDS and Rights Alliance for Southern Africa (ARASA)
Australia: Proposed sexual health law in New South Wales is a step backwards & runs counter to good public health
PROPOSED SEXUAL HEALTH LAW REFORMS IN NSW SLAMMED BY EXPERTS
The reforms would see people with HIV or an STI who fail to take “reasonable precautions” face a fine or up to six months in prison.
The New South Wales government has introduced a bill that would see people with HIV or an STI who fail to take “reasonable precautions” face a fine or up to six months in prison.
The Public Health Amendment (Review) Bill 2017seeks to make changes to Section 79 of the Public Health Act 2010, removing the existing law around disclosure of HIV, but replacing it with a new offence meaning anyone who knows they have an STI could be charged for not taking undefined “reasonable precautions”.
Sexual health organisation ACON has criticised the bill, saying it is at odds with good public health practice.
“Given that most of the STIs that would be covered by this proposal are treatable, it is our position that the new offence created in s79 introduces unprecedented, unjustified, and disproportionate penalties and runs counter to good public health processes,” ACON said in a statement on its website.
“This new offence could deter people from sexual health testing and contact tracing. The evidence indicates that HIV and other STIs are more likely to be transmitted via someone who has undiagnosed infection.”
ACON said that STIs are a health issue, not a criminal issue, and called on concerned members of the public to contact NSW Minister for Health Brad Hazzard.
Nic Holas of HIV organisation The Institute of Many agreed that the proposed new law is worrying.
“Those of us in the HIV-positive community are very concerned about the proposed changes to the Public Health Act,” he said.
“It used to be that you had to disclose your HIV status or face some kind of penalty, potentially. Last year the New South Wales government recognised that that kind of forced disclosure put all the responsibility on HIV-positive people, which was unfair and ultimately unhelpful in ending HIV.
“But now it seems what they’re trying to do is remove that—which is really great—and introduce punitive charges on anyone who’s HIV-positive or anyone with an STI if they don’t take reasonable precautions.”
Holas called the proposed law “really extreme” and said it could deter testing and result in worse public health outcomes.
“That’s extremely concerning for us, because the World Health Organisation says that those sorts of extreme punitive measures do the opposite of driving down rates of HIV and STIs, and send them upwards,” he said.
Holas said there is already provision under the law for a person intentionally spreading an STI to be charged with grievous bodily harm. He called for the proposed new offence to be scrapped.
“What’s far more important to ending HIV and the current high rates of STIs is to encourage testing and treatment, not heavy prison sentences,” he said.
Canada: Ontario leads the world in the over-criminalisation of HIV non-disclosure
Ontario a ‘world leader’ in unjustly prosecuting people living with HIV, advocates say
HIV-positive individuals being ‘criminalized’ when it comes to disclosing their status to sexual partners, by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission, critics argue.
It was around Christmas in 2008 when Chad Clarke said he got a phone call from a former partner screaming at him that he had given her HIV.
The next three years would see Clarke arrested for aggravated sexual assault, denied bail twice, pleading guilty to avoid a longer sentence, sent to prison where he was placed in protective custody, and put on the national sex offender registry for life.
The charge related to a failure to disclose his HIV status, although Clarke said that at the time he did not believe he was HIV-positive. Although he had tested positive in 2004, he said he had believed a second test showed he was negative. He said he’s been on medication, with an undetectable viral load, since 2008.
“HIV is not a crime,” Clarke, 45, told the Star in a recent interview. “It’s a public health issue. Isn’t health supposed to be key?”
People living with HIV in Canada risk an aggravated sexual assault charge and prison time if they don’t disclose their status to their sexual partner, unless a condom is used and the individual has a low viral load, which refers to the amount of the HIV virus in their blood.
Advocates have long complained of HIV-positive individuals being unjustly prosecuted by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission.
It’s an issue that is now on the agenda of federal Justice Minister Jody Wilson-Raybould, who has referred to an “over-criminalization of HIV non-disclosure” and is looking at introducing changes this year. But critics say the Ontario government has so far failed to match the federal government’s efforts in what remains a complex and sensitive area of the law.
“There are some serious injustices taking place right now,” said Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario. “People living with HIV are being criminalized for engaging in behaviours that should not be criminal, and to make it worse, people living with HIV are being charged, prosecuted and convicted of aggravated sexual assault.”
It wasn’t long ago when the media proclaimed AIDS as the “gay plague” that carried a death sentence, but the stigma around HIV/AIDS has hardly disappeared, as advocates point to the continued criminal prosecution of those who don’t disclose their status to their sexual partners as one example.
At least 184 people in 200 cases have been charged in relation to HIV non-disclosure since 1989, according to a report published this year by the Canadian HIV/AIDS Legal Network. In Ontario, at least nine cases have been taken to court since 2012.
“When used correctly and no breakage occurs, condoms are 100 per cent effective at stopping the transmission of HIV,” according to a 2014 consensus statement published by a number of leading Canadian HIV/AIDS medical experts. As well, because of advances in medication that can keep a person’s viral load low or undetectable, advocates say that the risks of transmission are far lower than they once were, regardless of condom use.
Therefore, they say, HIV-positive people should not be required to be placed in the delicate position of disclosing their status, unless there is intention to transmit HIV as well as actual transmission of HIV.
“In the best of all worlds, that would be the right thing do,” Toronto criminal defence lawyer Cynthia Fromstein, who has represented many HIV-positive individuals, said of a person disclosing one’s status.
“However, people have faced bad reactions, people have faced violent reactions, to disclosing their HIV status. People are also just people, they face rejection, which is hard, and particularly if you know that you in fact don’t pose a risk to someone, then I think people don’t want to put themselves in that position.”
Matters are further complicated by the fact that Ontario has no official prosecutorial guidelines to help guide Crown attorneys in their approach to these cases, and to decide whether to even bring one to court.
It gets even more complicated when you consider the Supreme Court’s last pronouncement on the topic in 2012, where it was found that a person must disclose if there is a “realistic possibility of transmission,” a phrase that has left Crown attorneys and judges differing on just what that means.
The federal government has been studying the issue since last year, and it’s expected to be discussed at the upcoming federal, provincial and territorial justice ministers’ meeting in Vancouver this week.
The gathering comes almost a year after Wilson-Raybould announced last Dec. 1, World AIDS Day, that she intended to look into the criminal justice system’s handling of HIV non-disclosure cases and work on the issue with her provincial and territorial counterparts.
“HIV treatment has slowed disease progression to the point that, for many, HIV infection can now be regarded as a chronic, manageable condition,” she said in a statement at the time.
“Still, the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS. Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”
The Criminal Code contains no laws specifically related to HIV non-disclosure, but the offence of aggravated sexual assault — reserved for the most egregious sexual assaults — is typically laid in such cases, and almost always carries prison time following conviction.
HIV/AIDS organizations do not oppose prosecutions in the rare cases where an individual had the intent to transmit the HIV virus, although whether the charge should still be aggravated sexual assault remains a matter of discussion.
While the federal government is responsible for amending the Criminal Code, it is the responsibility of provincial Crown attorneys to apply the law, and use their discretion when deciding whether to prosecute a particular offence.
In a statement sent to the Star last week, the federal department of justice said the government hopes to provide an update on its work on the issue by the end of the year. But it also reiterated that enforcement of the laws is very much a provincial matter.
“The work currently being undertaken with provincial partners will allow each jurisdiction to make informed decisions about how to address prosecutorial and charging practices within their area of responsibility,” the statement said.
Advocates have demanded that Ontario Attorney General Yasir Naqvi order a moratorium on the prosecution of non-disclosure cases — except in cases where intentional transmission of the virus is alleged — until the federal government implements its plan, which may include prosecutorial guidelines that the provinces could choose to adopt.
Their pleas have so far proven to be unsuccessful, as Crown attorneys in Ontario continue to bring non-disclosure cases — even where the virus was not transmitted — to court.
“The intolerable fact remains that Ontario continues to be a world leader in unjustly prosecuting people with HIV,” the Ontario Working Group on Criminal Law and HIV Exposure wrote in an April letter to Naqvi.
“The pattern of zealous, overly broad prosecution of people living with HIV in Ontario is the result of deliberate choices, both by individual prosecutors and (the Ministry of the Attorney General).”
Naqvi’s office said last week that he did meet with the working group last year, and that during the meeting, “the attorney general reiterated his commitment to work with the federal government as they review the way our justice system handles HIV-related cases.”
The discussion between advocacy groups and successive attorneys general in Ontario on non-disclosure prosecutions have been described as more or less one-sided, with very little progress being made on the government’s side.
Several years ago, the government did propose prosecutorial guidelines for non-disclosure cases, but the three outside experts allowed to read them — and who are also barred from discussing their contents — said they were so bad they told the ministry that no guidelines would be a better option.
“I don’t think it would be fair to say that we were consulted in the drafting of anything,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, who was one of the three experts, along with Peck and criminal defence lawyer Jonathan Shime, to see the draft.
“We had repeatedly put forward our ideas about what we thought they should be about.”
Among those suggestions: an acknowledgement that an undetectable viral load alone means there is no realistic possibility of transmission, regardless of condom use.
What prosecutors do have access to is a so-called “practical guide” prepared in 2010 by Hamilton Crown attorney Karen Shea, who successfully prosecuted Johnson Aziga for first-degree murder, an infamous 2009 case in which two of the women infected with HIV by Aziga later died from AIDS. Aziga’s trial heard that he had known since 1996 that he was HIV-positive, but did not start taking medication until 2005, two years after his arrest.
Shea’s 72-page document, which the Ministry of the Attorney General fought for years to keep secret after receiving a freedom of information request from Toronto lawyer Marcus McCann, covers everything from the elements the Crown must prove to secure a conviction, to the kind of information that should be sought on an HIV-positive individual from public health officials.
McCann expressed concern that the guide could have a chilling effect on individuals seeking help from public health authorities, as the guide encourages Crowns to seek information on accused persons from public health to use in court.
Indeed, HIV test results and other information gleaned from public health have been put on the record in court by the Crown at bail hearings and trials in non-disclosure cases.
The provincial government has previously acknowledged that while it’s not an official policy or guideline, Shea’s guide has been used to assist other Crown attorneys, although it’s unclear which parts are still consulted given that the science and case law have evolved since 2010.
“Many roads lead to Karen Shea. I don’t think she’s the only destination, but she is clearly on the turnpike as one of those stops,” said Elliott at the Canadian HIV/AIDS Legal Network.
Shea declined to comment to the Star.
Crown attorneys take into account scientific developments and new case law when considering to prosecute a case, said a spokesperson for the Ministry of the Attorney General, who confirmed that the ministry’s criminal law division has a “group of experienced prosecutors who are available to provide advice on HIV exposure cases,” but didn’t say who is part of that group.
The last time the Supreme Court ruled on HIV non-disclosure, in a 2012 case known as R v. Mabior, it found that disclosure was not necessary if the individual had a low viral load and a condom was used.
But Chief Justice Beverley McLachlin, writing for a unanimous court, also said that the double requirement “does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play.”
The meaning of that statement has played out in Canadian courtrooms since 2012, including in a recent Brantford non-disclosure case, where the Crown argued that Mabior requires low viral load andcondom use to avoid disclosure obligations, but the judge found otherwise.
The case involved a man, C.B., who has a low viral load but did not disclose to two women before having condomless sex. He was subsequently charged with two counts of aggravated sexual assault. Neither complainant was infected with HIV.
The trial took place in April, four months after Wilson-Raybould announced the federal government would target the over-criminalization of HIV non-disclosure.
Testifying for the defence, Dr. Philippe El-Helou, director of the HIV Clinic at McMaster University, said that in all of his years treating HIV patients, “he has not seen a transmission occur from a carrier who has an undetectable viral load,” Ontario Court Justice Robert Gee wrote in his decision.
The judge acquitted C.B. of all charges.
“The question becomes: Is condom use the only way to raise a reasonable doubt about the risk of transmission in a person with a low viral load or, if at the time Mabior was decided in 2012 it was the only way, has the science advanced to the point where it no longer is?” Gee wrote in a ruling released last month.
“The defence takes the position that the Supreme Court’s decision was not intended to establish an absolute and fixed rule that a low viral load and condom use was the only way to raise a reasonable doubt about the possibility of transmission.”
Gee sided with the defence, accepting El-Helou’s evidence that given C.B.’s undetectable viral load, “the risk of transmission in this case was as close to zero as can be measured.”
It is exactly the kind of case that advocates have long demanded be kept out of courtrooms in the first place, and why they hope sound prosecutorial guidelines would be of great help to Crown attorneys.
Chad Clarke has become an outspoken advocate since leaving prison in 2011, marching in the streets and speaking at numerous HIV/AIDS conferences. What he would most like to see is his name taken off the sex offenders’ registry.
He said he has post-traumatic stress disorder that goes “through the roof” every year when he has to sign in with police, one of the conditions of being on the registry. He lives on a fixed income, applying for jobs is difficult, and family relationships are strained.
“If you want to keep the charges against me, I’ll live with that, but take me off that damn sex offenders’ registry, because every day that I look at myself in the mirror, I see myself as a sex offender, and that’s not cool,” he said.
“I would like to personally see that instead of sticking this person in jail, you get them a point of care, you get them on medication right away, you get them mental health care, because trust me, mental health (issues) will go with you the rest of your life if you have HIV.”
How a group of dedicated advocates in Colorado ‘modernised’ their HIV-related laws to improve the legal environment for people living with HIV. Featuring Barb Cardell and Kari Hartel of the Colorado Mod Squad and Colorado State Senator, Pat Steadman.
Interviews by Mark S King
Written and introduced by Edwin J Bernard • Directed and produced by Nicholas Feustel for the HIV Justice Network
US: Radio interview with Catherine Hanssens, founder of the Center for HIV Law Policy, on the obsolescence of HIV criminalisation laws in the US
HIV Criminalization Laws Not Keeping Pace With Research, Treatment
In many states across the country, one can be charged with a felony for not disclosing their HIV status. However, recent studies show that, when individuals are properly treated, HIV transmissions from sexual encounters can range from zero to 1.56 percent. Why aren’t HIV criminalization laws in sync with the realities of HIV treatment and prevention? Catherine Hanssens, founder of the Center for HIV Law Policy, weighs in. This segment is hosted by Todd Zwillich.
HIV Crime Laws: Historical Relics Or Public Safety Measures?
Thirty-three states have laws that can be used to prosecute people living with HIV. Some states are looking to either repeal those laws or reduce their severity.
Robert Suttle clearly remembers telling his boyfriend that he was HIV positive the night they met. But after they split, three quarrel-filled months later, that became a point of contention: His “ex” pressed charges against him.
Suttle’s home state, Louisiana, is one of 33 states with laws that can be used to prosecute people living with HIV. And in Louisiana, intentionally exposing someone to HIV/AIDS is a felony punishable by up to 11 years in prison.
Because he wanted to put the whole ordeal behind him, Suttle accepted a plea bargain in 2009 and ended up doing 6 months in prison. He said he found out too late that pleading guilty meant registering as a sex offender wherever he goes.
Now some states are looking to either repeal such laws or reduce their severity. At issue is the balance between protecting public health and protecting the civil rights of individuals living with HIV.
The laws, which date to the 1980s and ’90s, vary greatly from state to state. Most impose criminal penalties on people who know their HIV status and potentially expose others to the virus. In some states, a conviction can mean up to 35 years in prison.
Twenty-four states require HIV-positive people to disclose their status to sexual partners, while six states require people to register as sex offenders as part of their punishment if they are convicted of an HIV-specific crime. In 22 states, felony laws, which cover assault and attempted murder for example, are used to prosecute people living with HIV who knowingly expose someone to the virus. And 25 states criminalize activities such as spitting, even though they are unlikely to transmit the virus.
Other states have statutes that tack on extra punishment based on the defendant’s HIV status. In Utah, for example, HIV-positive people convicted of prostitution, patronizing a prostitute, or solicitation are guilty of a felony, punishable by up to five years in prison, if they knew their status at the time of the crime. For an HIV-negative person, those same crimes would be a misdemeanor punishable by no more than six months in prison for a first-time offense.
Critics say the laws are relics of the past and demonize people infected with the virus. Some studies have shown that the laws don’t reduce HIV transmission and may actually drive up HIV rates, because people who feel stigmatized are less likely to get tested. A study published in June by researchers with the U.S. Centers for Disease Control and Prevention found no evidence that the laws reduce transmission of the virus.
“It’s very embarrassing and dehumanizing,” said Suttle, 38, who now lives in Harlem, New York, and works as an assistant director for the Sero Project, which advocates to end laws that criminalize people living with the virus.
In 1994, Texas became the first state to repeal its HIV criminal laws, according to the Center for HIV Law and Policy. But since then, people have been prosecuted for HIV exposure under general criminal laws such as attempted murder, which Catherine Hanssens, the center’s executive director, said illustrates why straight repeal of the laws is not enough. Texas courts have upheld that seminal fluid of a man living with HIV may constitute a deadly weapon.
In 2012, Illinois became the second state to revise its HIV crime laws, by requiring prosecutors to prove a defendant intended to transmit HIV and limiting prosecution to a more narrow definition of sexual activity. Iowa followed suit in 2014. Last year, Colorado enacted a law that repealed two HIV criminalization statutes and revised another by requiring that all sexually transmitted infections be treated equally under the law, rather than singling out HIV for prosecution.
California lawmakers are also considering a bill that would make it a misdemeanor to transmit HIV, rather than a felony. A similar HIV bill failed in Florida in May, but is expected to be re-introduced in the next session.
Also in May, the Ohio Supreme Court heard arguments in a case challenging the state’s criminal HIV law. The crux of the case: whether or not the law discriminates against people living with HIV, as well as whether requiring disclosure of one’s HIV status violates the First Amendment.
The push to reform HIV crime statutes “has become a national movement, and it’s part of the larger conversation about overcriminalizing people,” said Allison Nichol, law and policy counsel for the Sero Project.
“We need to take this out of the realm of someone committing a sex crime,” said Nichol, who used to prosecute sex crimes in Indianapolis. “These laws continue to feed a false narrative that people with HIV present a danger to public health, when in fact that is no longer true.”
But supporters of the laws argue they protect public health, and some states have moved in the opposite direction.
In May, Maryland Gov. Larry Hogan, a Republican, signed a law that, among other things, authorizes a judge to issue an emergency order to get someone tested for HIV if it’s believed that person has “caused exposure to a victim.” The law updates a previous one and is intended to treat rape victims who may have contracted HIV or hepatitis C. The same month, Tennessee enacted a law strengthening a statute requiring anyone who’s been arrested to be tested for HIV/AIDS if a law enforcement officer requests it.
“We’re talking about a criminal,” said Maggi Duncan, executive director of the Tennessee Association of Police Chiefs, who helped draft the legislation. “In the course of being arrested, they could have possibly exposed a first responder.”
The law was expanded to include all forms of hepatitis, which is on the rise in the state, Duncan said, “but HIV could easily become on the rise again with needle use, and that’s a real concern with heroin being on the upswing.”
Years of Activism
Activists have pushed for years to change the laws, with a focus on educating lawmakers and prosecutors about how HIV is transmitted. One key fact: An HIV-positive person whose viral load is undetectable has almost no chance of spreading the virus.
“More and more, there’s a realization that HIV criminalization laws have not kept up with science,” said Dan Kirk, a former prosecutor with the office of the Cook County State’s Attorney, which has jurisdiction over Chicago. Last year, then-Cook County State’s Attorney Anita Alvarez called for the law to be revised further.
Today, prosecutors in Illinois have to prove that an offender intended to transmit HIV. Defendants can assert a legal defense if a condom was used, but they cannot use being in treatment as a defense. This despite condoms being less effective — 80 percent — than anti-retroviral drug treatment — 95 percent — at reducing the risk of transmission, according to the CDC.
Under the measure pending in California, it would no longer be a felony to fail to disclose a positive HIV status. Instead it would be a misdemeanor on a par with failing to disclose any other transmitted disease. To be charged with a misdemeanor, the defendant must have known that he or she has a communicable disease and acted with the specific intent to infect another person, engaged in conduct that poses a substantial risk for transmission, and actually transmitted the disease to another person.
“We want people to get tested. We want people to get on medication. We want people to be honest about their HIV status,” said California state Sen. Scott Wiener, a Democrat who sponsored the legislation. “But you don’t accomplish those things by sending people to prison.”
Gray Area
Scattershot state reporting makes it difficult to say how many cases are prosecuted under the HIV transmission laws, according to Hanssens.
But it isn’t difficult to find individual examples. In June, for example, an HIV-positive Georgia man with mental health problems was charged with reckless conduct for allegedly spitting in the eye of a police officer.
In July, a 58-year-old South Carolina man was sentenced to 35 years in prison after he was found guilty of sexually assaulting a 5-year-old girl and potentially exposing her to HIV. Medical tests showed the child did not contract the virus. He was sentenced to 25 years for the rape and 10 years for the potential exposure.
Prosecuting — or defending — these cases can be difficult: How do you prove that someone has disclosed their HIV status? Often, as in the case of Suttle, it becomes a case of “he said, he said.”
A 2015 report by the Williams Institute at the UCLA School of Law found the overwhelming majority of people — 95 percent — charged with HIV crimes in California were sex workers. The report also found that nearly every charge resulted in a conviction; the average prison sentence was longer than two years. Two-thirds of people charged were black or Latino. White men accused of an HIV-related crime were significantly more likely to be released and not charged, the report found.
“This is really a public health issue,” said Scott Schoettes, an HIV project director at Lambda Legal who has worked on HIV legal policy for years.
“It shouldn’t be addressed by criminal law unless there’s malicious intent.”
Yesterday, news broke that populist Congressman, Pompeo de Mattos, has withdrawn an amendment originally proposed in 2015 to make ‘deliberate’ HIV transmission a ‘heinous crime’.
The amendment, Bill No. 198, 2015, would have added to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death – those who “transmit and infect consciously and deliberately others with the AIDS virus. (sic)”.
In Brazil, intentional transmission, that is, with intent, is already considered a crime. Articles 130 and 131 of the Penal Code already provide for imprisonment for those who infect others. Anyone who exposes someone to a venereal disease through sexual intercourse can be jailed for three months to a year or receive a fine. If the person intentionally wants to transmit the disease, the penalty is imprisonment, from one to four years, and fine.
“The initiative to criminalize HIV-positive people does not contribute to the fight against prejudice and discrimination, and it also throws the responsibility of prevention on the infected person,” says a statement released on Thursday by Foaesp Of the State of São Paulo).
In this same document, the Forum thanked Mr Pompeo for his request to withdraw from the PL. “We are now waiting for the House Board to abide by the request and file the bill, and we will also be careful that no other parliamentarian has a similar initiative.”
Activists from all over Brazil have celebrated the Bill’s withdrawal. Any new proposal cannot be considered by the current parliament and now must wait until after elections, scheduled for October 2018.
Since 2015, PLHIV networks, civil society organisations, the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health, and a number UN agencies – includng UNAIDS and UNFPA – had all pressured Congress to withdraw the bill.
The director of the Department of STDs, AIDS and Viral Hepatitis (DIAHV), Adele Benzaken, called the federal MPs Érica Kokay (PT-DF), member of the Family Social Security Commission (CCSF) and Coordinator of the Joint Parliamentary Front to Combat STDs, HIV , and AIDS – and Laura Carneiro (PMDB-RJ) and Deputy Pompeo de Mattos to thank them for their support against the procedure of PL 198/15. ““The effort of these parliamentarians was essential to educate their colleagues in the House to reassess that Brazil is a reference in the treatment of HIV / AIDS and that this will not help the Brazilian response at all.“ The director of DIAHV also highlighted the mobilisation made by civil society and the support of the Brazilian Office of the Joint United Nations Program on HIV / AIDS (UNAIDS) that she said were key to the outcome achieved with the filing request.
For the UNFPA representative in Brazil, Jaime Nadal, the bill goes against the ideals and proposals of the United Nations regarding the HIV / AIDS epidemic. Criminalizing HIV transmission, in addition to reinforcing the stigmatization of people living with the virus, may discourage people from undergoing testing and treatment, since they would be under threat of becoming criminals, he said.The bill ignores the scientific advances in HIV / AIDS, which prove that antiretroviral treatments reduce the chances of transmitting the virus in sexual intercourse by up to 96%. “Many countries around the world are reforming their laws criminalising HIV transmission,” said Nadal, adding that the bill goes against the global trend.
UNAIDS Director in Brazil, Georgiana Braga-Orillard, reinforced the speech of the UNFPA representative. According to her, the bill further vulnerabilises populations with a positive serological status, since “it considers the more than 800 thousand people living with HIV in Brazil as potential criminals.”
In a technical note, UNAIDS outlined six counter-arguments to the bill: it penalizes the most vulnerable; it promotes fear and discrimination; it favours the selective application of the law; it disregards the scientific evidence on HIV; it compromises privacy and confidentiality, and it will make Brazil lose its leading role in the response to HIV / AIDS.
A public meeting with the Congressman, scheduled for July 4th, was cancelled at the last minute. However, the letter of withdrawal, although only publicly released yesterday, was dated May 11th.
Translation: I request you, pursuant to art. 104 of the Internal Rules of the Chamber of Deputies, the withdrawal of the Bill of Law No. 198 of 2015, which “makes a heinous crime the deliberate transmission of the AIDS virus.”
Nevertheless, prosecutions under general laws continue.
In July, a newspaper reported that a 43 year-old heterosexual man was charged with serious bodily injury in a Rio de Janeiro court for ‘attempting to infect two women with HIV’ by having sex without a condom.
In an interview with the Rio newspaper Extra , the man admitted that he was HIV-positive and [allegedly] transmitted HIV to the women, but denied that he had had sex without a condom with the intention of infecting his partners.
The case continues.
US: Center for HIV Law and Policy releases updated ‘HIV Criminalization Sourcebook’
Today, the Center for HIV Law and Policy (CHLP) has released a third, updated version of their ‘Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions’ series, first published in 2010.
This resource for lawyers and community advocates outlines punitive laws, policies, and cases affecting people living with HIV (PLHIV) and other communicable diseases in all fifty states, the military, federal prisons, and U.S. territories. It may be used as an aid for attorneys of people living with HIV prosecuted for “HIV exposure” or non-disclosure of HIV status, as well as for advocates who want to reform HIV-related criminal laws in their state.
The ‘HIV Criminalization Sourcebook’ catalogues and analyses state and federal HIV criminal laws in the United States, providing examples of recent prosecutions and explanations of the major cases applying these laws, along with text and analysis of state laws on other sexually transmitted diseases that involve criminal penalties or other restrictions for exposing another person to possible infection.
Specifically, it covers laws that:
1. criminalize non-disclosure of HIV status or exposure of a third party to HIV;
2. make exceptions to confidentiality and privacy rights of people living with HIV;
3. provide for sentence enhancements for people living with HIV convicted of underlying crimes such as ‘prostitution’ and ‘solicitation’; and
4. require sex offender registration for people living with HIV convicted of these ‘crimes’.
The Sourcebook is part of CHLP’s campaign to support state advocates through tools that expand legal literacy on HIV criminalization. In addition to the Sourcebook, CHLP’s website includes a separate page for each state summarizing relevant HIV and STI criminal law sections, so that users can download everything they need just for their state in addition to accessing the entire Sourcebook.
The Center for HIV Law and Policy will be co-hosting a webinar on October 11, 2017 to review ways to use the Sourcebook in HIV criminal reform efforts. The webinar also will explore some of the different strategic pathways to reform, along with benefits and drawbacks to those different options. The discussion will cover some of the key factors and questions to consider in deciding on what reform strategy makes the most sense in a given jurisdiction.
As a physician who has spent his career in correctional settings and providing health care to persons who are homeless, I have seen how racism, poverty and heterosexism form a Bermuda Triangle, creating a deadly trap for thousands of men and women. Sometimes the barriers are in our attitudes, but sometimes they are in our structures – especially public policy.
HIV criminalization laws in the United States were written at a time when we knew little of the virus, the epidemiology, or the disease. Missouri’s laws – and those in more than 30 other states – have not been updated with our much-improved knowledge of transmission and treatment.
HIV is not easily transmitted. With diagnosis and treatment, that risk is reduced to effectively zero. With diagnosis and treatment, HIV is a manageable disease, no longer a death sentence. The severe penalties of HIV-specific criminal codes spring from bias, misinformation and fear. They increase stigma, which drives testing and treatment underground and serves to spread HIV by discouraging people to know their status or to seek appropriate treatment if HIV-positive.
Michael Johnson is a man trapped in the Bermuda Triangle of our racism, sexism and heterosexism. An African-American gay man from Indianapolis who grew up in poverty, Johnson struggled against the barriers that our society erects. By perseverance and hard work, despite a learning disability, he managed to access an opportunity for college education through a wrestling scholarship.
Then Missouri’s outdated and flawed policies intervened in Johnson’s life. He was convicted and sentenced to more than 30 years in prison for “reckless exposure and transmission of HIV” in July 2016.
The conviction was overturned, however, on December 20, 2016, based on the state’s failure to comply with Johnson’s discovery request and his inability to prepare a meaningful defense. He has now been returned to St. Charles County and has pled not guilty as the process of a re-trial gets underway.
Michael Johnson has already spent over three years incarcerated for his alleged actions. I teach our medical students at Saint Louis University not only about HIV, but also about health equity, health literacy, the effect of repetitive and cumulative trauma, and other social determinants of health. These are the influences that shape, for good or ill, an individual’s ability to thrive and flourish. Continued incarceration is unlikely to create conditions for Johnson’s future success, nor does it improve society in any way.
Johnson’s incarceration is an indictment of our society for our failures, and we would do well to heed the lessons we can learn and change our direction. Race, class, and sexual orientation continue to divide our nation, and we see dramatic results of our responses to these topics in our physical and virtual communities with some frequency.
The massacre at Pulse, the night club in Orlando, is perhaps the most shocking recent example. Ignorance can breed fear, which, in turn, can breed hatred. But this process is not inevitable. We can slow down and alter this process through our words and our actions.
We all have the power to influence others. As Michael Johnson faces the next step of his legal journey, we have the power to frame public and private discussion around him and the issues surrounding his case. We should honor Michael Johnson, ourselves and our community by pursuing knowledge, reflecting on our biases, and carefully selecting our vocabulary. We can choose to always use language about Johnson that respects his full humanity.
We ought to do even more. We should seek medically accurate information about HIV and use our power as citizens to change public policy so that it is based on medical science. We should end the stigma of being HIV-positive and encourage Missourians to be tested and treated. The impact of that change would create a healthier and safer world for all of us.
Fred Rottnek, MD, MAHCM, is the director of Community Medicine and Professor in the Family and Community Medicine at Saint Louis University. As the previous medical director of Corrections Medicine for the Saint Louis County Department of Public Health, his clinical practice for the past 15 years was at the Buzz Westfall Justice Center and Family Courts.
Cases of non-disclosure of HIV rising in the courts
In the last two months alone, three new cases of non-disclosure of HIV-positive status have been prosecuted in Quebec. This increase contrasts with past practices and has alreted the advocacy groups of people living with HIV who fear a paradigm shift.
“Between 1998 and 2012, there were 21 cases, followed by 10 cases from 2012 to 2016, which was already a significant increase,” said Liz Lacharpagne, a lawyer with the Coalition of Quebec Community Organizations to Fight AIDS (COCQ-SIDA) . Three cases in two months are unheard of for the Canadian Coalition for HIV Criminalization Reform (CCRCV), of which Ms. Lacharpagne is a member, and that is why this coalition intends to urge the federal Department of Justice to act Before the trend worsens.
Individuals who do not disclose their HIV status when there is a possibility of transmitting HIV to their partner may be subject to criminal charges in Canada. The problem is that this judicial response is not limited to the transmission of HIV, according to the CCRCV, which therefore finds it inappropriate.
Canada is the only country in the world to treat non-disclosure of HIV status as a serious sexual assault. To date, there have been nearly 200 charges laid for non-disclosure in Canada. In the majority of cases where the complaint led to a conviction, HIV was not transmitted.
The fact itself of not informing one’s partner is considered as sexual assault. “The average prison sentence for a person convicted of offenses related to” The non-disclosure of HIV is 54 months – more than double the average sentence for sexual assault (24 months), ” notes the Canadian HIV / AIDS Legal Network. “A discriminatory situation that ignores scientific data on HIV and international recommendations such as those of UNAIDS,” says Liz Lacharpagne.
Chad Clarke felt the ground slipping under his feet when he learned that a warrant was being issued against him. He went to the authorities and then pleaded guilty. “To have a lesser sentence,” he says. Liable to 15 years in prison, he was sentenced to four years. “If I had understood that I would be a life-long sex offender, I would not have pleaded guilty,” he said six years after his release. Chad says he did not know he was HIV positive. In prison he had difficulty accessing appropriate medical care. No antiretroviral treatment for several weeks, no blood test for more than two years. Today, he is on the National Sex Offender Registry and cannot find a job.
Alexander McClelland, a PhD student in sociology at Concordia University, is conducting research on the impacts of a non-disclosure conviction. Of the 14 people he looked at, “none was aware of putting his/her partner in danger. Sometimes the doctor explained that because their viral load was undetectable, there was no risk of transmission. “Others were not always able to impose condom use on their partner. He reports in particular the case of a sex worker who is HIV-positive as a result of rape.
“She recounts that she insisted that her client wear a condom, he refused. She was intoxicated at the time of the act, which diminished her ability to impose it on him. In court, her words did not weigh much. Of all the consequences documented by the researcher, the trauma associated with being labelled a sex offender is the heaviest. Like Liz Lacharpagne, Alexander McClelland believes that criminalization could deter people from being screened, according to the logic that, if one is unaware of one’s HIV status, one can not be accused of non-disclosure.
Consultation in progress
These judicial subtleties were first echoed in Ottawa. In December 2016, Jody Wilson-Raybould, the Canadian Minister of Justice, stated that “… disproportionate criminalization of non-disclosure of HIV status discourages many people from testing and being treated […]. The criminal justice system in Canada must adapt to better reflect the available scientific evidence …. A working group of stakeholders is currently working on a reform. Nothing, however, has yet emerged from their work.
For its part, the CCRCV is conducting a pan-Canadian consultation with about 40 organizations to reach consensus on recommendations to the government. “We do not know, at this point, what the best way to reform is, but we know what needs to be done,” said Nicholas Caivano, a policy analyst with the Canadian HIV / AIDS Legal Network. Criminalization should be applied only in cases where there is a proven intention of transmission, never when precautions preventing transmission have been made, and the charge of sexual assault should never be used in a case of non-disclosure . ”
While awaiting the criminal justice reform (under the federal Department of Justice), the CCRCV does not rule out a moratorium on prosecutions (which falls to the provinces). “There is a lack of awareness of the problem among prosecutors,” says Liz Lacharpagne. Guidelines are needed to ensure that prosecutions are conducted in an informed manner, taking into account scientific advances. ”
In Quebec, at the office of the Minister of Justice, Stéphanie Vallée, they would not comment on the progress of the work, preferring to rely on the federal government. The federal Department of Justice declined our request for an interview, deeming any discussion premature in the circumstances. “This work, which includes an extensive review of the criminal law, the role of public health, applicable medical sciences, and current charges and prosecution practices, is underway.”
Behind the jurisprudence
The Supreme Court of Canada (SCC) established in 1998 that an HIV-positive person must disclose his or her status before having sex with a significant risk of transmission. Non-disclosure is considered as fraud in relation to the partner’s consent. Non-consensual sex is considered as a sexual assault. In 2012, Mabior established the concept of “realistic possibility” of transmission. The CSC considers that this possibility is not established if the viral load is low and if a condom is used. Implicitly, if only one of these two criteria is met, there is a “realistic possibility”. This is contradicted by science.
Behind Science
The Partner study was conducted between 2010 and 2013 among 767 serodiscordant couples. On average, at the beginning of the study, HIV-positive partners had been receiving antiretroviral therapy for five years. Couples had had sex without a condom for two years. With a total of 44,000 condomless relationships, no transmission occurred.
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La non-divulgation du VIH en hausse devant les tribunaux
Au cours des deux derniers mois seulement, trois nouveaux cas de non-divulgation de séropositivité ont fait l’objet de poursuites au Québec. Cette augmentation tranche avec les pratiques passées et alarme les groupes de défense des personnes vivant avec le VIH, qui redoutent un changement de paradigme.
« Entre 1998 et 2012, on a recensé 21 cas, puis 10 de 2012 à 2016, ce qui était déjà une augmentation significative », relève Liz Lacharpagne, avocate à la Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA). Trois cas en deux mois, c’est du jamais vu pour la Coalition canadienne pour réformer la criminalisation du VIH (CCRCV), dont Mme Lacharpagne est membre, et c’est pourquoi cette coalition entend presser le ministère fédéral de la Justice d’agir avant que la tendance ne s’emporte.
Les personnes qui ne divulguent pas leur séropositivité alors qu’il y a possibilité qu’elles transmettent le VIH à leur partenaire peuvent faire l’objet d’accusations criminelles au Canada. Le problème, c’est que cette réponse judiciaire ne limite pas la transmission du VIH, selon la CCRCV, qui la juge donc inappropriée.
Discrimination
Le Canada est le seul pays au monde à considérer comme une agression sexuelle grave la non-divulgation de séropositivité. Jusqu’à présent, on a recensé au Canada près de 200 accusations portées pour non-divulgation. Dans une majorité de cas où la plainte a mené à une condamnation, le VIH n’a pas été transmis.
C’est le fait de ne pas informer son partenaire qui est reconnu comme une agression sexuelle. « La peine moyenne d’emprisonnement pour une personne declaree coupable d’infractions relatives à la non-divulgation du VIH est de 54 mois — plus du double de la peine moyenne pour agression sexuelle (24 mois) », relève le Réseau juridique canadien VIH/sida. « Une situation discriminatoire qui ignore les données scientifiques sur le VIHet les recommandations internationales telles que celle de l’ONUSIDA », estime Liz Lacharpagne.
Chad Clarke a senti le sol se dérober sous ses pieds quand il a appris qu’un mandat d’arrêt pesait contre lui. Il s’est présenté aux autorités, puis a plaidé coupable. « Pour avoir une peine moins lourde », raconte-t-il. Passible de 15 ans de prison, il écope de quatre ans. « Si j’avais compris que je serais fiché à vie comme délinquant sexuel, je n’aurais pas plaidé coupable », dit-il six ans après sa libération. Chad affirme qu’il ne se savait pas porteur du VIH. En prison, il a eu difficilement accès aux soins médicaux appropriés. Pas de traitement antirétroviral pendant plusieurs semaines, pas de test sanguin pendant plus de deux ans. Aujourd’hui, fiché au registre national des délinquants sexuels, il ne trouve pas d’emploi.
Doctorant en sociologie à l’Université Concordia, Alexander McClelland mène une recherche sur les impacts d’une condamnation pour non-divulgation. Des 14 personnes dont il a examiné la trajectoire, « aucune n’avait conscience de mettre son partenaire en danger. Parfois, le médecin leur avait expliqué que leur charge virale étant indétectable, il n’y avait pas de risque de transmission. » D’autres n’étaient pas toujours en mesure d’imposer le port du condom à leur partenaire. Il rapporte notamment le cas d’une travailleuse du sexe, séropositive à la suite d’un viol.
« Elle relate avoir insisté auprès de son client pour qu’il porte un condom, il a refusé. Elle était intoxiquée au moment de l’acte, ce qui diminuait ses capacités à le lui imposer. En cour, sa parole n’a pas pesé lourd. » De toutes les séquelles documentées par le chercheur, le traumatisme associé au fait de se voir étiqueter délinquant sexuel est la plus lourde. Tout comme Liz Lacharpagne, Alexander McClelland estime que la criminalisation pourrait dissuader des personnes de se faire dépister, suivant la logique que, si on ignore son statut sérologique, on ne peut être taxé de non-divulgation.
Consultation en cours
Ces délicatesses judiciaires ont trouvé un premier écho à Ottawa. En décembre 2016, la ministre de la Justice du Canada, Jody Wilson-Raybould, déclarait que « […] la criminalisation disproportionnée de la non-divulgation de la séropositivité décourage bon nombre de personnes de passer des tests de dépistage et de se faire traiter […]. Le système de justice pénale au Canada doit s’adapter pour mieux refléter les données scientifiques disponibles[…]. » Un groupe de travail réunissant les acteurs concernés travaille actuellement à une réforme. Rien toutefois de concret n’en est encore ressorti de leurs travaux.
De son côté, la CCRCV mène une consultation pancanadienne auprès d’une quarantaine d’organisations pour établir un consensus sur les recommandations à adresser au gouvernement. « Nous ne savons pas, à ce stade-ci, quelle serait la meilleure façon de réformer, mais nous savons ce qui doit l’être, commente Nicholas Caivano, analyste des politiques au Réseau juridique canadien VIH/sida. La criminalisation ne doit s’appliquer que dans des cas d’intention avérée de transmission, jamais lorsque des précautions empêchant la transmission ont été prises, et on ne doit jamais recourir à l’accusation d’agression sexuelle dans un cas de non-divulgation. »
En attendant une réforme du droit criminel (relevant du ministère de la Justice fédéral), la CCRCV n’exclut pas de demander un moratoire sur les poursuites (incombant aux provinces). « On observe une méconnaissance de la problématique chez les procureurs, dit Liz Lacharpagne. On souhaiterait des directives pour que les poursuites soient menées de manière éclairée, en tenant compte des avancées scientifiques. »
À Québec, au bureau de la ministre de la Justice, Stéphanie Vallée, on se garde de tout commentaire sur l’avancée des travaux, préférant s’en remettre au fédéral. Le ministère fédéral de la Justice a décliné notre demande d’entrevue, jugeant toute prise de parole prématurée dans les circonstances. « Ce travail, qui comporte un vaste examen du droit pénal, du rôle de la santé publique, des sciences médicales applicables et des pratiques d’inculpation et de poursuite actuelles, est en cours », ont-ils fait valoir par courriel.
Derrière la jurisprudence
La Cour suprême du Canada (CSC) a établi en 1998 qu’une personne séropositive doit divulguer son statut avant une relation sexuelle exposant à un risque important de transmission. La non-divulgation est considérée comme une fraude au consentement du partenaire. Une relation sexuelle non consentie est considérée comme une agression sexuelle. En 2012, l’arrêt Mabior instaure la notion de « possibilité réaliste » de transmission. La CSC considère que cette possibilité n’est pas établie si la charge virale est faible et si un condom est utilisé. Implicitement, si seul l’un de ces deux critères est rempli, il y a « possibilité réaliste ». Ce que la science contredit.
À la traîne de la science
L’étude Partner a été menée entre 2010 et 2013 auprès de 767 couples sérodiscordants. En moyenne, au début de l’étude, les partenaires séropositifs suivaient une thérapie antirétrovirale depuis cinq ans. Les couples avaient des relations sexuelles sans condom depuis deux ans. Avec un total de 44 000 relations sans condom, aucune transmission n’a eu lieu.
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