US: Advocates launch Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform

Yesterday saw the launch of a Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform, to provide guidance for efforts to reform or “modernize” HIV-specific laws across the United States.

The concern, as highlighted by Charles King, President and Chief Executive Officer, Housing Works, Inc, is that if HIV criminalisation reform focuses soley on changing laws so that those who are virally suppressed are not considered ‘a risk’ that this approach will not address the unjust disproportional impact of the US criminal legal system on people of colour, LGBTI people, sex workers, and the financially disadvantaged.

“Housing Works is a leading proponent of #UequalsU, and we believe public education about this scientific advance will lower stigma and thereby create a positive environment for HIV decriminalization. At the same time, it would be a travesty for #UEqualsU to be used to create a criminal class of people who are not durably virally suppressed. HIV criminalization in any form sets back efforts to end the AIDS epidemic, and is based on prejudice and not science.”

The creators and original endorsers of the Statement are: The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, National LGBTQ Task Force, PFLAG, Treatment Action Group, U=U, and Women with a Vision.

In the preamble, they note that:

discussions among people working on the ground on HIV criminal law reform have reflected a mix of views and some uncertainty about the best way to use these remarkable scientific advances in their advocacy. Some have proposed that advances reflected in the U=U campaign (“Undetectable = Untransmittable”) should be added as a defense in modernized HIV criminal laws. Others worry that putting this kind of language into an actual law will exclude or further disadvantage those who experience severe disparities in access to quality treatment—individuals who do not reach or maintain viral suppression may still face prosecution.

Beginning in March 2017, a small group of organizations and advocates began discussions of how to draft a statement that could clearly and accessibly capture concerns about the use of “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U) in the criminal law reform context.

Over the next several months, the statement was shared with a diverse range of organizations and advocates at both the state and national level. In June 2017—after multiple revisions, reviews, and discussions—the current statement was finalized.

To read and sign on to the Consensus Statement visit: www.hivtaspcrimlaw.org which provides links to a variety of resources that can help support the use of the statement, as well as an FAQ that further explores the issues, such as the many tensions facing advocates working to improve the legal environment for people living with HIV

For example, question 7 asks “isn’t some progress better than no progress at all?

This is a hotly debated issue, and people frequently disagree about it. For example, many people supported a federal law ending discrimination against lesbian and gay people that didn’t include transgender people because they felt it was easier to pass that way, and because some progress was better than none. Unfortunately, it usually takes a long time to change a law to cover the people left behind the first time. And some people think that progress that leaves some people out can be taken as putting a “seal of approval” on treating some people less fairly.

With public health messaging, it is always possible to try new and better campaigns. But when it comes to criminal law reform, change can be slow, and once a law is revised, lawmakers are very unlikely to consider further reforms in the near future. Criminal law reform advocacy focused on U=U might lead to a law that only helps some people—those with access to health care and ART—but provides no real help to those without it. Worst of all, legislators may be happy to claim a victory and not revisit the issue for years, decades, or ever again.

The issue of how best to utilise science in advocacy to combat HIV criminalisation is not unique to the United States, however. Last month, two staff members from the Canadian HIV/AIDS Legal Network published a blog post discussing how the ‘Undetectable = Untransmittable’ campaign might best be understood to impact HIV criminalisation advocacy.

Like the US Statement, they also urged caution in relying solely on science to help resolve the issue.

Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

Apply now for the first European HIV Academy for Enabling Legal Environments, September 13-14, Berlin

A call for applications for the European HIV Academy for Enabling Legal Environments is now open.

This two-day training academy for people living with and affected by HIV, is dedicated to skills building for addressing punitive or disabling legal environments.

Around 25 participants from across Europe will be selected to take part in this training academy, which will focus on three intersectional legal barriers affecting people living with, and affected by, HIV:

legal and regulatory barriers that impact access to HIV testing;
legal barriers affecting access to healthcare of migrants in an irregular situation; and
criminalisation of HIV non-disclosure, potential or perceived exposure, and/or transmission.

The training academy is organised in collaboration with Deutsche AIDS Hilfe (DAH) – the host organisation of AIDS Action Europe (AAE) – the European AIDS Treatment Group (EATG), Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN).

When: 13-14 September 2017

Where: Deutsche AIDS Hilfe, Berlin, Germany

Apply here: https://www.surveymonkey.com/r/WZRFV35

Applications close Wednesday July 26th (23:59 CET)

The objectives of the training academy are:

To increase awareness and understanding of the many legal barriers to health, dignity, and HIV prevention for people living with, and affected by, HIV.
To increase skills and capacity of people living with and affected by HIV by using new tools created by each of the Academy partners in order to challenge punitive or disabling legal environments at the country-level across Europe.
To develop stronger relationships and networks within Europe in order to facilitate skills-sharing and support amongst people working on HIV-related legal and policy reform across the region.
To catalyse co-ordination and strengthen community voices from across Europe on the road to AIDS 2018 and beyond.

Format

The training academy is organised in a workshop format with presentations and group work. The trainers are leading experts in the field from the organising bodies and their networks. The entire training will be in English; no translation will be provided.

Participant criteria

People working on improving HIV-related legal and policy environments in any of the 53 countries in the WHO Europe region are welcome to apply. Participants will be scored based on country needs-assessment, fluency in English and links to local and national networks.

Only complete applications submitted via the online form will be accepted.

Scholarships

Some scholarships are available to cover all costs including flights and accommodation, or flights or accommodation only. If you wish to apply to a scholarship, please indicate this on the application form. Please note that all meals are provided to all participants.

To apply please fill in this application form (2 pages/steps) by Wednesday July 26th (23:59 CET)

Canada: The recent conviction of a woman living with HIV exemplifies the injustices of the current use of sexual assault laws against people living with HIV

When will justice department announce new approach to prosecuting cases of HIV non-disclosure?

Critics say that recent conviction of Indigenous woman is further proof that the use of sexual assault laws in cases of HIV non-disclosure continue to criminalize marginalized people and women of colour.

BY ALEX MCCLELLAND

An Indigenous woman with HIV has had her appeal on an aggravated sexual assault conviction dismissed by the Manitoba Court of Appeal. The decision handed down on June 29 comes as a blow to the growing movement of lawyers and human rights advocates pushing to change laws that they say criminalize people with HIV, in particular vulnerable women.

Activists have been calling for a moratorium on all new prosecutions of HIV-non-disclosure cases.

The woman convicted in the most recent case is pregnant. She will serve nine months in a Manitoba prison. (NOW Magazine has decided not to publish her name out of respect for her privacy.)

She was convicted in 2014 for failing to disclose her HIV status to a friend she had unprotected sex with three times. They had both been drinking on each occasion. The friend later tested positive for HIV, but it’s not clear if he contracted the condition from the woman. It was never proven in court.

Testimony at her trial also revealed the woman’s own history of intergenerational sexual violence and her belief she had contracted HIV through coerced sex. But the appeal court decision did not take any of that into consideration as mitigating factors.

“Everyone is very shocked and saddened,” says Laverne Gervais, Project Coordinator of Sisters of Fire at Ka Ni Kanichihk, a support group for Indigenous women living with HIV attended regularly by the woman. “She did everything that the law wants people to do, she attended programming, bettering herself, and was working on starting a new family with her committed boyfriend.”

The conviction is considered by critics to exemplify the injustices of the current use of sexual assault laws against people living with HIV, including the stigma still attached to the condition even though it is now considered a chronic and manageable condition that can be rendered undetectable after treatment.

The trial and appeal had been widely publicized in sensational articles. The woman’s high school graduation photo was leaked to the media shortly after her arrest.

Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, says the fact she is HIV-positive completely changed how she was viewed by the court. “The judge presumptively saw her as a sexual assailant.”

The judge who presided over her original trial, Justice Colleen Suche, noted in her decision that the woman’s behaviour was not predatory “or part of a pattern of dangerous behaviour. Rather, her silence [in not disclosing her HIV status] was the result of fear” – namely, as a result of her own history of sexual abuse.

However, Suche instructed the jury to disregard testimony related to her intoxication.

Says Elliott: “Had she been HIV-negative, her intoxication would have been relevant in her ability to consent or not to the sex. But it was not understood as relevant in her ability to disclose her HIV status. The distinction is biased. This is clearly not a sexual assault, and the application of that law in this case does a disservice to those laws.”

It was alleged by the Crown that the accused may have transmitted HIV to her friend, but Suche indicated in her decision that “the question was not relevant” and, therefore, not before the jury. There was also no HIV phylogenetic analysis done, a test to determine if the same strain of HIV was transmitted from one person to another. The woman reportedly gave him a condom during one of the sexual encounters but he didn’t use it.

Due to the conviction on aggravated sexual assault, she is now a registered sex offender. She was allowed to volunteer at her daughter’s daycare program, but will now be barred from doing similar volunteer work because of her conviction.

She faces a challenging time in jail. People incarcerated for sexual assault because of HIV non-disclosure face stigma, discrimination and violence behind bars. They are often housed in protective custody as a result, which can mean being held in administrative segregation 24/7.

On World AIDS Day December 1, 2016, the Federal Minister of Justice Jody Wilson-Raybould promised “to examine the criminal justice system’s response to non-disclosure of HIV status,” recognizing that “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.”

Wilson-Raybould also acknowledged in her statement that the Canadian criminal justice system “must adapt to better reflect the current scientific evidence on the realities of this disease.”

But the hoped-for immediate moratorium on new HIV non-disclosure cases that activists have been lobbying for is not happening. And a new approach to prosecuting such cases is now not expected until the fall.

Until then, the law will continue to be applied in ways, critics say, that create more vulnerability and insecurity for already marginalized people in society, especially women of colour.

“We can’t be living in fear of the criminal law any longer,” says Jeff Potts, of the Canadian Positive People Network, a national organization representing people living with HIV. “HIV is not a crime.”

Brazil: UN Working Group on HIV/AIDS states its opposition to Brazilian bill aiming to criminalise HIV transmission

The United Nations Expanded Thematic Group on HIV / AIDS (WG / UNAIDS) met on Monday (3) to discuss the current outlook for the AIDS epidemic in Brazil and to articulate opposition to Bill 198/2015, which would make it a heinous crime to deliberately transmit the virus. This was the first meeting of the group chaired by the United Nations Population Fund (UNFPA) .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.”

According to her, the goal of the UN System in Brazil is for all people to be tested for the virus and, if necessary, treated – the opposite of what would happen if the bill was approved.

In a technical note, UNAIDS outlined six counter-arguments to the bill: it penalizes the most vulnerable; it promotes fear and discrimination; it favors 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.

Brazilian legislation

Law 12.984 defines as a crime the discrimination of people living with HIV / AIDS in Brazil. Institutions and persons who deny education, health or employment to HIV-positive persons, as well as those who promote their segregation or disclose their serostatus in order to offend them, are punishable.

For the director of the Department of Surveillance, Prevention and Control of STIs, HIV / AIDS and Viral Hepatitis, Adele Benzaken, it is important to discuss not only discrimination but about mortality caused by late diagnosis, irregularities and treatment abandonment.

Caio Oliveira, of the United Nations Children’s Fund (UNICEF), stressed that article 130 of the Brazilian Penal Code already criminalizes the exposure of people to serious illnesses. In this way, it would not be necessary for the bill to make the transmission of the virus a heinous crime. “We need to make sure that the people who need them do not have any problems,” he said.

State and civil society

In addition to representatives of the UN System, leaders of social movements, non-governmental organizations and representatives of the public power participated in the meeting.

“Another major problem … is the confidentiality of medical records. Why? Because you will only be able to get this information if in any way these medical records come to the public domain, come to the justice system, “warned federal prosecutor for Citizen Rights, Deborah Duprat. The prosecutor also stressed that this issue may reach mainly socially stigmatized groups, which hide the infection to their families and society to avoid discrimination.

Pétala Brandão, from Conectas Human Rights, said that the bill is a result of human rights setbacks in Brazil. “It is a manifestation of a punitive ideology, of criminal recrudescence, which creates stigma and vulnerability,” he said.

She stressed that the participation of the United Nations is fundamental to guarantee the rights of all people, but that there must be, in essence, an articulation with civil society and social movements.

Erika Kokay (PT-DF) endorsed the argument of the Conectas specialist. “This culture of fear turns into hate and creates intolerance. The project creates invisible social differences, “said the deputy.

UNFPA chairs working group

With a strong focus on the sexual and reproductive rights agenda, UNFPA is one of 11 UN agencies to be part of the HIV / AIDS working group. The agency has assumed the presidency of the group for the 2017-2018 biennium.

UNFPA works to promote universal quality health services, including the prevention and treatment of reproductive tract infections and sexually transmitted infections, including HIV / AIDS.

Created in 1997 through a multisectoral approach, the working group seeks to support the response to the HIV / AIDS epidemic in the country. This mobilization places HIV among the priority themes of joint action of the UN System for several years.

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Grupo de trabalho critica projeto de lei que criminaliza transmissão do HIV

O Grupo Temático Ampliado das Nações Unidas sobre HIV/AIDS (GT/UNAIDS) reuniu-se na segunda-feira (3) para discutir o atual panorama da epidemia de AIDS no Brasil e articular a oposição ao Projeto de Lei 198/2015, que torna crime hediondo a transmissão deliberada do vírus. Este foi o primeiro encontro do grupo presidido pelo Fundo de População das Nações Unidas (UNFPA).

Para o representante do UNFPA no Brasil, Jaime Nadal, o projeto de lei vai contra os ideais e propostas das Nações Unidas referentes à epidemia de HIV/AIDS. A criminalização da transmissão do HIV, além de reforçar a estigmatização das pessoas que vivem com o vírus, pode desencorajar as pessoas a realizarem a testagem e o tratamento, uma vez que estariam sob a ameaça de se tornarem criminosas, afirmou.

O projeto de lei desconsidera os avanços científicos em HIV/AIDS, que comprovam que tratamentos antirretrovirais reduzem em até 96% as chances de transmissão do vírus em relações sexuais. “Muitos países, em todo o mundo, estão reformando suas leis que criminalizam a transmissão do HIV”, lembrou Nadal, completando que o projeto vai na contramão da tendência mundial.

A diretora do UNAIDS no Brasil, Georgiana Braga-Orillard, reforçou a fala do representante do UNFPA. Segundo ela, o projeto de lei vulnerabiliza ainda mais as populações com estado sorológico positivo, já que “considera as mais de 800 mil pessoas vivendo com HIV no Brasil como criminosos em potencial”.

Segundo ela, a meta do Sistema ONU no Brasil é que todas as pessoas realizem o teste para o vírus e, se necessário, façam o tratamento — o oposto do que aconteceria se o projeto de lei for aprovado.

Em nota técnica, o UNAIDS salientou seis argumentos contrários ao projeto de lei: ele penaliza os mais vulneráveis; promove medo e discriminação; favorece a aplicação seletiva da lei; desconsidera as evidências científicas sobre HIV; põe em risco a privacidade e a confidencialidade; e faz com que o Brasil perca o protagonismo na resposta ao HIV/AIDS.

A legislação brasileira

A Lei 12.984 define como crime a discriminação contra pessoas que vivem com HIV/AIDS no Brasil. São passíveis de punição instituições e pessoas que negarem educação, saúde ou emprego às pessoas soropositivas, bem como as que promoverem sua segregação ou divulgarem seu estado sorológico com o intuito de ofendê-las.

Para a diretora do departamento de Vigilância, Prevenção e Controle das ISTs, HIV/Aids e Hepatites Virais, Adele Benzaken, é importante discutir não somente sobre discriminação, mas sobre a mortalidade causada pelo diagnóstico tardio, irregularidades e abandono do tratamento.

Caio Oliveira, do Fundo das Nações Unidas para a Infância (UNICEF), destacou que o artigo 130 do Código Penal brasileiro já tipifica como crime a exposição de pessoas a moléstias graves. Dessa maneira, não seria necessário que o projeto de lei tornasse a transmissão do vírus um crime hediondo. “Precisamos assegurar que as pessoas que precisam não tenham mais problemas”, finalizou.

Estado e sociedade civil

Além de representantes do Sistema ONU, participaram do encontro lideranças de movimentos sociais, organizações não governamentais e representantes do poder público.

“Outro grande problema (…) é a confidencialidade dos registros médicos. Como é que fica? Porque você só vai poder ter essa informação se de alguma maneira esses registros médicos vierem a público, vierem para o sistema de Justiça”, alertou a procuradora federal dos Direitos do Cidadão, Deborah Duprat. A procuradora ressaltou também que esse ponto pode atingir principalmente grupos socialmente estigmatizados, que escondem a infecção de suas famílias e da sociedade para evitar discriminação.

Pétala Brandão, da Conectas Direitos Humanos, afirmou que o projeto de lei é resultado dos retrocessos dos direitos humanos no Brasil. “Ele é uma manifestação de uma ideologia punitivista, de recrudescimento penal, que cria estigma e vulnerabilização”, declarou.

Ela ressaltou que a participação das Nações Unidas é fundamental para a garantia dos direitos de todas as pessoas, mas que deve haver, imprescindivelmente, articulação com a sociedade civil e movimentos sociais.

Para a deputada Erika Kokay (PT-DF) endossou o argumento da especialista da Conectas. “Esta cultura do medo se transforma em ódio e cria intolerâncias. O projeto invisibiliza as diversidades sociais”, disse a deputada.

UNFPA preside grupo de trabalho

Com forte atuação pela agenda de direitos sexuais e reprodutivos, o UNFPA é uma das 11 agências das Nações Unidas a fazer parte do grupo de trabalho sobre HIV/AIDS. A agência assumiu, este ano, a presidência do grupo para o biênio 2017-2018.

O UNFPA atua para a promoção do serviço de saúde de qualidade universal, incluindo a prevenção e tratamento das infecções do aparelho reprodutor e das infecções de transmissão sexual, incluindo o HIV/AIDS.

Criado em 1997 por meio de uma abordagem multissetorial, o grupo de trabalho busca apoiar a resposta à epidemia de HIV/AIDS no país. Essa mobilização coloca o HIV entre os temas prioritários de atuação conjunta do Sistema ONU há vários anos.

Canada: Positive Light magazine reflects on Rethinking Justice: the 7th Symposium on HIV Law & Human Rights

“I would not have consented to sex had I known of their HIV” status. This statement is problematic and here’s why.

On June 15, 2017 the Canadian HIV/AIDS Legal Network held a symposium in Toronto, Ontario, Rethinking Justice: the 7^th Symposium on HIV Law and Human Rights. The symposium focused on unjust HIV criminal legislation in Canada.

Canada unfortunately has one of the worst records in the world for the overly broad use of criminal laws to address HIV nondisclosure. Panels of experts and those with lived experience of HIV criminalization presented their research and experiences. The legal experts discussed the history of the nondisclosure law and how the notion of “fraud” relates to criminal laws for nondisclosure.

In Canada when a person does not disclose their HIV status to sex partners it is considered an act of fraud where consensual sex did not take place. Because the sex is not consensual, as the complainant maintains they, “would not have consented to sex had they known of their partner’s HIV status” charges of aggravated sexual assault are applied. Aggravated sexual assault comes with a prison sentence which can range from ten years to a life time imprisonment where it is deemed the person posed a significant risk of serious bodily harm, which posed a realistic possibility of transmission of HIV.

Presented here are a couple of highlights of Supreme Court of Canada rulings, which the reader can explore further. The Supreme Court of Canada rulings laid out the terms and conditions for which “fraud” could be used to prosecute people living with HIV for non-disclosure of their status. The focus of this article is on the notion of fraud from the perspective of people living with HIV including the detrimental effects legislative and popular belief pose.

In 1998 the R v. Cuerrier, (1998) 2 SCR 371 ruled in a nondisclosure of HIV case that

“HIV/STI non-disclosure amounts to fraud vitiating consent, thus transforming consensual sex into a sexual assault when,

there is a “significant risk of serious bodily harm”

AND

the complainant would not have consented to sex had they known accused person’s status
exposing a person to the risk of HIV “endangers life” and therefore is considered aggravated (sexual) assault

In 2012 the R v Mabior, (2012) SCC 47 and R v D.C. (2012) SCC 48 ruled specifically in the case of HIV: there needs to be a “significant risk of serious bodily harm”, which poses a “realistic possibility” of transmission of HIV.

Section 265 (3) (c) of the Criminal Code of Canada states: fraud vitiates consent to contact. For the purposes of this section, no consent to physical contact is obtained where the complainant submits or does not resist by reason of fraud.

You can read more about these Supreme Court of Canada rulings, a complex phenomenon where the highest court in the country has intervened with no clear resolution to date as Canada remains a world leader in prosecutions for non-disclosure of HIV status. There are approximately 187 non-disclosure prosecutions in Canada to date.

In the meanwhile here’s the latest on nondisclosure and the notion of fraud and “reasonable risk” of transmitting the HIV virus, as experienced on interpersonal levels by people living with HIV.

That a person can choose to not have sexual contact with someone living with HIV and then have the option to pursue criminal charges of aggravated sexual assault on the basis of fraud and “risk of transmission” if they realize after the fact they did not practice universal caution in the first place, is problematic on many levels.

Here’s why: it fuels stigma and discrimination against people living with HIV. It deters people from getting tested for HIV and knowing their status and seeking treatment. It fuels criminalization of HIV non-disclosure. (Criminalization has not proven to be effective in lowering rates of HIV transmission.) It reinforces an imbalance of power for individuals in taking responsibility for their own sexual well-being.

” It is not simply fear of disclosure, but the stigma and bashing which follows, that make it almost impossible for many to face disclosing their HIV status.”

Charging people with fraud in HIV non-disclosure cases exacerbates lack of education in regards to modern scientific information in the world of HIV. It does not take into consideration the fact that having an undetectable viral load makes it impossible to transmit the virus (Undetectable=Untransmittable or U=U). As well there is no acknowledgement of pre-exposure prophylaxis (PrEP) as a prevention measure).

Criminal charges remain value laden and racist as they tend to target marginalized groups of minorities, rather than being driven by scientific evidence and facts.

The general public behaves negatively towards disclosure, discouraging people from being open about their status and in some instances making it impossible. The general public has the strong arm of the law on their side and they can always prosecute someone for nondisclosure, using fraud as a basis, without giving any thought to how they might manage disclosure differently.

People living with HIV want to disclose, as every person who struggles with disclosure will attest. It is not simply fear of disclosure, but the stigma and bashing which follows, that make it almost impossible for many to face disclosing their HIV status. This includes severe stigma, using disclosed information in damning ways to harm persons living with HIV as well as potentially many forms of violence (especially toward women who are in positions of power imbalances in relationships), blackmail, constant rejection and the more subtle kinds of rejection which are often the most hurtful.

People living with HIV want to pursue some sort of normalcy in fulfilling their basic human need and basic human right to intimacy and relationships with others. After a while, as a means of self-preservation, disclosing becomes not so easy for all the reasons described.

How can the general public insist upon disclosure when they set the tone and grounds for unsuccessful disclosure?

It’s fucked. People living with HIV are fucked.

The power imbalance is blatantly tipped in favour of the HIV-negative.

But if people are going to continue with irrational expectations, whereby the HIV-positive are obliged to disclose their status or risk prosecution, yet are bashed, stigmatized and often threatened with different types of violence when they do meet their obligation to disclose, then what are people living with HIV supposed to do?

This situation sets the stage for non-disclosure and everything that entails.

The irony is not lost as the HIV-positive continue to disclose and make every effort to convey modern facts about HIV in the hope that it will make disclosure easier. To date, it has not been effective. As a matter of fact, the stigma around HIV disclosure is worse than ever.

This irrational pattern of thinking leaves people living with HIV in a position where it is often near impossible to get the facts out about modern science which dispel myths and stigma that are rooted in fear and ignorance. People living with HIV face deprivation of intimacy and relationships that are key components to a healthy lifestyle, and part of basic human needs like hunger and thirst.

If people go for prolonged periods without their basic human needs met I would hazard a guess they are not in the greatest state of mind or body while struggling with the stress and constant reminder that life is not as it should be. They might be thinking about what it would be like to experience intimacy, free of the complications, just this once. “Oh to escape from this imposed burden and to feel normal again, just for a while.” This is a key factor in disclosure complexity.

Here are a few options available to people living with HIV under these circumstances. None of them are ideal:

Never be intimate again. Live in isolation and fear of prosecution as well as discrimination from the general public.
Continue to disclose and suffer the backlash with the end result being more stigma and bashing, no intimacy, with continued responsibility and onus being on people living with HIV to disclose. Live with fear of prosecution even if disclosure occurred.
Remain hopeful and continue to educate and advocate for change in public perception and legislation, which recognizes scientific modernization proving that the HIV-positive are not a risk. Recognizing how intimacy is a basic human need and right.
Continue to advocate for changes in HIV criminal laws that are to date not effective, while trying to maintain hope for a more favourable and balanced situation than the disclosure dilemma we now see.

It’s time to rethink the statement, “I would not have consented to sex had I known of their HIV status.” A person living with HIV, who is on medication and has an undetectable viral load cannot transmit the HIV virus sexually. Why would you not have sex with a person who is living with HIV?

It’s time to learn and absorb this vital information which changes the notion of what “reasonable risk” means and which offers a new, fear-free perspective to people living with HIV.

Modern scientific developments have been a secret well guarded by gatekeepers, as this information is largely left out of the criminalization discussion. This scientific information is not new or cutting edge, yet is not discussed with the general public or taken account of in legislation.

Prosecutions, discrimination and ostracism remain the favoured options in managing HIV disclosure here in Canada.

The general public, supported by legislation and policy, has created this situation; how can they begin to fix it? What about some suggestions for the general public and law makers? People living with HIV already know what their responsibilities are.

Education leads to change in thinking, change in decision making, and a change in the statement, “I would not have consented to sex had I known of their HIV status.” Change in legislation and change in public perception would ultimately lead to a decline in transmission rates, improved quality of life for people living with HIV and the removal of the stress and threat of criminalization.

If people living with HIV are received with positive and supportive responses, disclosure of HIV will be far less complex and hopefully one day it will be a nonissue.

But back to the fraud charges, and some questions to ponder in this complex state of affairs: How can people living with HIV be criminally charged with fraud, under the circumstances described here? Can those who make disclosure difficult be prosecuted for fraud? Does choosing not to know the facts while promoting ignorance and in turn harm to people living with HIV constitute fraud? If disclosure were more of a shared responsibility, would there be such harsh legislation in place?

And how can responsible decisions be made and opinions formed which ignore scientific facts?

South Africa: Regional judges meet to discuss the use of law as a tool to respond to the HIV epidemic in Africa

Regional judges meet to promote law as a tool to strengthen the HIV response in Africa

High and Supreme Court judges from across Africa gathered in Johannesburg, South Africa this week for an annual forum to share experiences, compare cases across different jurisdictions, learn about the latest medical and science developments, and discuss ways to advance the use of law as a tool to respond to the HIV epidemic.

The three-day Africa Regional Judges Forum on HIV, Human Rights and the Law was attended by nearly 50 participants, including 30 judges from 16 countries, and was organized by the United Nations Development Programme (UNDP) through the Africa Regional Grant on HIV: Removing Legal Barriers.

The forum was established by a group of judges in 2014 following the release of the report of the Global Commission on HIV and the Law, an independent body convened by UNDP which examined links between legal environments and HIV responses. The annual meetings are owned and planned by the judges themselves.

“Through their interpretation of national Constitutions, legislation, international and regional human rights treaties, the judiciary play a crucial role in establishing and implementing laws, policies and practices that can aid the HIV response,” said Justice Key Dingake who opened the forum with a keynote speech. “This annual forum has proven to be a useful mechanism for facilitating experience and knowledge sharing amongst the legal community, and it is hoped that these efforts will translate into a positive impact on the lives of people affected by HIV, who are often among the most vulnerable in society.”

Discussions during this year’s meeting focused on transgender persons and their lived realities, HIV and tuberculosis in prisons, criminalization of HIV transmission, people who use drugs, and adolescent sexual and reproductive health and rights, including an in-depth discussion on child marriage in Sub-Saharan Africa.

Relevant cases were shared with participants. A landmark judgement in Malawi concerning overly broad criminalization of HIV non-disclosure, exposure and transmission was discussed in detail. The case concerns a woman living with HIV and on antiretroviral treatment who was convicted of a crime under section 192 of the Penal Code for breastfeeding another person’s child. The child did not contract HIV and the evidence indicated that the breastfeeding was accidental and unintended. With the support of the Southern Africa Litigation Centre, UNDP and a team of local lawyers and activists, the conviction was overturned in January 2017 as part of strategic litigation efforts. Key actors involved in the case, including the judge and defense lawyer, attended the session and shared insights of the case with participants.

“One of the key issues in the case was how HIV can be transmitted and the risk of HIV transmission when breastfeeding,” said Justice Zione Ntaba. “I was able to use the information from previous meetings of the Judges Forum as well as material on the database to assist me in determining whether breastfeeding a baby put the baby at significant risk of contracting HIV.”

Another session during the forum focused on tuberculosis in prisons. Katherine Brittin from TB/HIV Care Association discussed how tuberculosis is transmitted in prison and the risk factors for transmission, including overcrowding in prisons. She called on the judges to take these factors into account when sentencing individuals, especially given the overcrowding of prisons in many countries in Africa.

A key aim of the forum is to give opportunities for the judiciary to hear directly from representatives of civil society and affected population groups on the impact of laws, policies and practices. Real world lived experiences were presented by a transgender doctor, a transgender man from Asia-Pacific, a man who acquired TB while in prison, two women who were forced into marriage as children, and a person who uses drugs and is currently on methadone treatment.

In some parts of the region, cultural norms such as child marriage are having harmful effects on the HIV response. Participants from Zimbabwe shared the difficulties that they encountered in mounting a legal challenge for child marriage in the country. In 2016, civil society and the Southern African Development Community-Parliamentary Forum collaborated to develop a Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage which was intended to prompt policy reforms in Member States. While the initiative is still in its infancy, participants expressed hope that it will be a catalyst for change.

“Laws that are based on evidence and human rights have the power to make a positive impact on the HIV response,” said Amitrajit Saha, Senior Advisor HIV and Human Rights, UNDP. “UNDP works to empower and marginalized key populations, including women and girls, in national and local HIV responses can strengthen the response. This also contributes to fulfilling the Sustainable Development Goals pledge to ‘leave no one behind’.”

UNDP has developed an online searchable database of HIV and the law related judgements, which was shared with participants. The database is continually growing in size and has proven to be a useful tool for judges over the last two years that it has been in operation. The database can be accessed online here.

One highlight of this year’s gathering was the creation of a Steering Committee comprised of five judges from the forum. Justice Dingake will serve as the President of the Steering Committee; Judge Zukisa Tshiqi of the Supreme Court of Appeal of South Africa will serve as the Vice President. The other three members of the Steering Committee are Judge Mumcy Dlamini of the High Court of Swaziland, Judge Ndomba Kabeya Elie Leon from the Democratic Republic of the Congo and Judge Anthony Fernando of the Seychelles Court of Appeal. The Steering Committee will set the strategic direction of the forum, initially adopt a draft plan of action for the next six months and work with UNDP and other partners to implement the plan. Preliminary discussions were also held on expanding the forum to cover countries from the Middle East and Eastern Europe regions.

Additionally, the forum dedicated a session to planning for the upcoming Second Africa Regional Dialogue on HIV and the Law scheduled to take place 3-4 August in Johannesburg, and discussed the importance of including judges in this significant event.

Africa: Moving towards revolutionising approaches to HIV criminalisation

“We have all agreed with the Sustainable Development Goal of ending HIV and Tuberculosis by 2030. We cannot get there while we are arresting the same people we are supposed to ensure are accessing treatment and living positively,” said Dr Ruth Labode, a member of Parliament from Zimbabwe opening remarks at a two-day global meeting co-hosted by the AIDS and Rights Alliance for Southern Africa (ARASA) and HIV Justice Worldwide (HJWW) on 24 and 25 April 2017 in Johannesburg, South Africa, which focused on “Revolutionising approaches to Criminalisation of HIV Non-disclosure, Exposure and Transmission”.

The meeting was attended by advocates, civil society organisations, lawyers, judges, national human rights institutions and Members of Parliament from all over Africa and with some delegates from North America. Central to these deliberations was the draconian provisions within numerous HIV-specific laws being developed as government responses to the prevention and control of the HIV epidemic. The good intentions inherent in these pieces of legislation are often marred with provisions, which criminalise people based on their HIV status. Punitive provisions relating to ‘compulsory testing’, ‘involuntary partner notification’, ‘non-disclosure’ and ‘transmission’ of HIV are often cited, fueling stigma against people living with HIV.

The common theme binding these deliberations, was the negative impact of HIV criminalisation and the stories that were shared by colleagues. The increasing trend of imposing criminal sanctions against people living with HIV, had resulted in adverse impact on public health outcomes for certain populations, especially women. While reinforcing stigma, HIV criminalisation impedes access to sexual and reproductive health services such as condoms, HIV testing and treatment. Further, HIV criminalisation discourages HIV-positive women from accessing ante-natal care, which leads to increased maternal and child mortality. The overly broad and vague nature of most HIV specific laws, accompanied by the imposition of criminal sanctions without empirical or scientific support, further underpins the rift between public health goals and the protection of human rights.

Representing the AIDS Legal Network, one of the partners who led the development of the 10 Reasons Why Criminalisation Harms Women, Johanna Kehler mentioned the fact that, “HIV criminalisation and HIV specific laws are often set against a social milieu that is patriarchal, heteronormative and perpetuates gender inequalities and utilises punitive approaches to “correct” imbalances.” She went on to add that these laws ultimately maintain and widen the divide between public health needs and human rights obligations.

“Most prosecutions globally involve no or negligible risk of transmission. Among the thousands of known prosecutions, cases where it was clear, much less proven beyond reasonable doubt, that an individual planned on or wanted to infect another person with HIV, are exceedingly rare. People are being convicted of crimes contrary to the best public health advice, but also contrary to scientific and medical evidence”, said Dr Laurel Sprague of the HIV Justice Network, who has since become the Executive Director of the Global Network of People Living with HIV (GNP+).

During the meeting, various organisations shared their experiences around litigating these matters and community advocacy mounted to reform problematic laws or specific draconian provisions. Cases from Zimbabwe, Nigeria and Niger showcased that challenges were experiences in most contexts.

The Uganda Network on Law, Ethics & HIV/AIDS (UGANET), together with other advocates and activists, continue to challenge the Ugandan law and constitutionality of the criminalisation provisions contained in the HIV Prevention and Control Act of 2014. The Southern Africa Litigation Centre (SALC) spoke to the extensive work that they furthered in Malawi, which included a focus on arbitrary arrests and dentition. Malawi has taken the centre stage where HIV criminalisation is concerned, as they are currently in the process of tabling a decade-old Draft HIV and AIDS (Prevention and Management) Bill, which contains draconian provisions around HIV criminalisation.

Amplifying the voice of survivors of HIV criminalisation, the meeting was privileged to engage with Kerry Thomas via telephone from a state correctional facility in Boise, Idaho in the United States of America. Mr Thomas, who was prosecuted for HIV non-disclosure and the sentence that he is serving, reinforced the unjust nature of these laws. Mr Thomas is currently serving his eighth year out of a 30-year sentence for non- disclosure to his ex-partner, despite there being no proof of transmission and the fact that he had consensual and protected sex. His appeal on the unconstitutionality of Idaho’s non-disclosure law, was overturned in the District courts in 2016.

The meeting concluded with very strong calls for everyone to joining the global HIV JUSTICE WORLDWIDE movement and organisations committed to utilise their existing resources to galvanise advocacy focusing on ending HIV criminalisation.

Participants agreed that there was a need to focus on the inter-sectionalities within the HIV criminalisation discourse, as well as a need for coordination and collaboration amongst legislators, members of the judiciary, parliamentarians, health care workers and civil society organisations to further advocacy related to this issue.

The participants also agreed that transformative approaches to HIV criminalisation, require both legal and social reforms, such as sensitisation of community members and the media. ARASA has committed to working with colleagues in developing a timeline of key events and advocacy opportunities, at which colleagues could participate.

Revolutionising approaches to Criminalisation of HIV Non-disclosure, Exposure and Transmission was supported by a grant from the Robert Carr civil society networks Fund.

Since its inception, ARASA has played an active role in addressing HIV criminalisation in the region and globally. ARASA has strengthened the capacity of civil society on the issue and supported partners to work with the media, parliamentarians, members of the judiciary and lawyers to address HIV criminalisation.

To read more about the meeting, follow #Decrim4Health on Facebook and Twitter. You can also view a gallery of photos taken during the meeting here.

South Korea: Women living with HIV reluctant to report sexual assault, because of prejudices against people with HIV in the legal system and HIV criminalisation law

Discrimination against people with HIV rampant: UN study

Korean people with HIV still face rampant discrimination, over 30 years since the first case was discovered here, a study released Thursday by UNAIDS has found.

According to initial findings from the People Living With HIV Stigma Index in South Korea, 37 percent of respondents reported suicidal thoughts, and a similar proportion had cut themselves off from family and friends.

In addition, 71 percent of people with HIV said they had been insulted or threatened because of their status.

Although almost all respondents said they were receiving anti-retroviral treatment for HIV, 70 percent said they had still avoided going to a clinic when it was needed.

The economic difficulties faced by respondents were also serious. Although most were college educated and around two-thirds were aged between 30 and 50, only 37 percent were employed full-time.

Less than 1 in 10 full-time workers had told their employees they had HIV and more than half of respondents said they had quit school or work because of their HIV status.

A separate report released by the National Human Rights Commission on Wednesday found 91 percent of people with HIV said they faced discrimination at work and 83 percent were discriminated against at school.

Asked about sources of negative attitudes, the UNAIDS report found media to be no better than general internet comments, with both cited by three-quarters as a source of negative views toward people with HIV. Religious groups were cited by 64 percent.

Citing a lack of funding and government support, the authors of the report conceded the limitations of the survey due to small sample size, noting particularly that women were not properly represented. Just one woman with HIV was surveyed, partly because only 7.6 percent of people with HIV are women and there is a lack of networks for them.

Kwon Mi-ran, a consultant for Korean Network for People living with HIV/AIDS (KNP+), which conducted the research with UNAIDS’ support, said more research was required into women with HIV, who faced some specific issues.

“Women with HIV face serious stigma and the government’s policies have nothing that addresses women with HIV specifically,” she said. “There are no communities for women to share their experiences and support each other and they are isolated.”

Kwon said it was more difficult for women to report sexual assault, partly because of the attitudes of people in the legal system toward people with HIV and partly because of a law that criminalizes acts that can spread the virus.

Another growing form of discrimination against people with HIV was that nursing homes were refusing to accept them as an increasing number reached old age.

“Antiretroviral treatment is widely available in South Korea, and so most people living with HIV can keep their health. But when they need long-term care because of old age or other HIV-related diseases, there is no place they can go,” said Seo Bo-kyung of KNP+.

Only 27 percent said they were confident their medical records would be kept private and 17 percent said doctors had disclosed their HIV status to other people without permission.

Despite UNAIDS and World Health Organization recommendations to avoid testing without informed consent, the majority of respondents found they had HIV after being tested without their knowledge.

The NHRC report also found discrimination in health care, with 26 percent saying treatment had been refused, and a similar number saying their status was indicated on their bedside charts.

“Health care settings should be stigma-free environments to ensure people living with HIV not only stay healthy, but their loved ones and community are also protected from HIV,” Steve Kraus, director of the UNAIDS Regional Support Team for Asia and the Pacific, said in a news release accompanying the report. “It is imperative that we have protective laws and empowered communities.”

The report recommends consideration of HIV as a disability to bring it under existing discrimination protections, and for a comprehensive discrimination law. It also calls for NGOs to work with the government.

The respondents’ most favored policy is public education on HIV, but Seo Bo-kyung of KNP+ stressed that the quality of that education was important.

“In many cases, HIV education is conveyed as a means to deliver homophobic messages and tends to describe people living with HIV as pathogens, and not as humans,” he said. “That is the reason that we emphasize a human rights-centered approach.”

By Paul Kerry (paulkerry@heraldcorp.com)

UK: Yusef Azad of the National AIDS Trust calls for an end to HIV being used in court to emphasise the seriousness of a crime when it has no relevance to it

20th June 2017

Last month newspapers reported the trial and conviction of a man who had gone berserk in a Manchester hotel, during which he both caused criminal damage and bit a police officer who had been called to the scene to restrain him. Deplorable of course, though sadly not that uncommon an event. But there was a twist to this story, fastened on in newspaper headlines:

“‘Vile coward’ salesman with HIV deliberately BIT family man copper in shock hotel assault”

The man has HIV and his name and identity were disclosed in the media. His HIV positive status is now permanently in the public domain for anyone who ever feels like googling him. His HIV positive status was brought up in court by the prosecuting lawyer, ‘[The police officer] had a bite mark on his arm, which didn’t pierce the skin … As it was found that the defendant is HIV positive then more tests had to be taken by the police officer’.

A bite which does not pierce the skin caries absolutely zero risk of HIV – why does the CPS allow a prosecutor to claim that tests were necessary? This is simply untrue and misleads the court. But the alleged need for such tests and the implicit risk of HIV transmission is used to emphasise the trauma of the victim and the seriousness of the offence – it is meant to have an impact on the severity of sentence. A man’s HIV status has been revealed publicly and permanently, and quite possibly had an impact on his sentence, even though his HIV had absolutely no relevance to the crime for which he was convicted. This is not just prosecution, it is persecution on the basis of HIV status by police and prosecutors.

And unfortunately it is not a one-off but something NAT witnesses repeatedly as we monitor press reports on HIV in the UK. With some regularity we come across news articles of cases where people have their HIV status raised publicly in court even though it has no bearing on the offence. They are usually assaults of varying degrees of seriousness and the HIV status of the accused is claimed as a reason for the victim to have an HIV test, or take PEP, with great stress on the anxiety and trauma of worrying about possible HIV transmission. Needless to say in no instance, following such assaults, has the victim actually acquired HIV as a result.

That is not surprising given, for a start, that well over 90% of people diagnosed with HIV are on effective treatment and incapable of transmitting HIV to others. But the courts seem to take no account of treatment as prevention. Nor do they seem to understand how HIV is and is not transmitted. HIV is raised in cases of spitting, biting and scratching where HIV could not have been passed on. As in this recent Manchester case, the HIV status of defendants are put in the public domain and their sentences often affected without justification.

Should we feel sorry for convicted criminals? Some might say they had it coming and they deserve justice. Absolutely, justice is essential. But this isn’t it. Everyone has the right to be treated equally before the law but at the moment people with HIV are being treated worse than those who are HIV negative and guilty of the same offences.

What about the victims? There is now an expectation that the impact on the victim of a crime is taken into account by the court. That is understandable and right – but what happens when the fear of HIV is wholly without foundation and a result simply of stigma or ignorance. What happens when a victim insists on an HIV test or PEP despite clear clinical advice that it is unnecessary and they are not at risk of HIV? Taking account of fear and anxiety in such circumstances is for the courts simply to endorse and propagate HIV misinformation and prejudice. The harm of these cases goes beyond that to the defendant. Everyone with HIV is harmed by newspaper accounts of trials which faithfully report the inaccurate fears of HIV transmission raised in court and which increase HIV stigma as a result.

Nor does this do any favours to the victims who are just reinforced in their trauma and misunderstanding of how HIV is passed on.

These cases remind me of the old ‘Gay Panic’ defence where people charged with attacking gay men would claim their actions were an instinctive immediate response to a gay man coming on to them. A completely natural, if regrettable, reaction from a red-blooded male. Happily, the CPS would now give short shrift to such a defence if raised in court. But instead they irresponsibly play with an equally discreditable HIV-version in prosecuting crimes. We might call it the ‘HIV panic’ attack, where, despite all the evidence and science showing that HIV has no relevance to the crime, they nevertheless encourage the ‘HIV panic’ of the victim to be raised in court as part of their case for the culpability of the accused.

This has to stop. The police, CPS and the courts are failing in their Public Sector Equality Duty and are guilty of discrimination. We call on the CPS to meet us and discuss how this injustice can be brought to an end as soon as possible.

Published by the National AIDS Trust on June 20, 2017

Canada: Rob Olver from Positive Lite magazine gives an overview of the Rethinking Justice Symposium

Rethinking Justice with Renewed Hope

So there I was, getting up at three in the morning once again in order to get to Toronto in time for an event. The event in this case was “Rethinking Justice 2017 Symposium on HIV Law and Human Rights” and I’d been looking forward to it especially since I knew a representative of the federal government would be there and I was very keen to hear what that representative might have to say to us. Two buses and a train later, I was in Toronto, waiting for the symposium to begin.

First off, Trevor Stratton of the Canadian Aboriginal AIDS Network (CAAN) welcomed us to the land and the conference. He went on to say that indigenous people understand about criminalization and to emphasize that indigenous women in particular are also disproportionately criminalized.

Next we heard Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, who also welcomed us, gave an overview of the day to come and posed the symposium’s overarching question: “Should we look at changing provisions in the criminal code that are used to criminalize people?”

After that the symposium proper got underway. The first segment was entitled “The State of HIV Criminalization” and it began with an audio presentation from Alex McClelland of Concordia University in partnership with the Canadian HIV/AIDS Legal Network. Alex does qualitative research, focusing on peoples’ lives in order to arrive at an empirical basis to assess the damage of injustice and violence at the hands of government employees. The audio portion of his segment consisted of various people talking about their experience of being criminalized and a lot of it was pretty hard to hear:

“I thought I was innocent until proven guilty.” “I was naked, along in a room with male guards watching me.” That sort of thing.

Unfortunately Alex was not able to attend in person but did address us by video after the audio presentation and then there was a live panel of persons living with HIV, during which Chad Clarke spoke in some detail about his own horrific experience, including beatings and deprivation of his HIV medication at the hands of the Canadian justice system employees.

And that set us up to hear our policy-makers’ response to HIV criminalization. The speaker was Marco Mendocino, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and as I sat here listening, I began to feel unexpectedly, if cautiously, optimistic.

He began by reaffirming the government’s commitment to HIV criminalization reform, saying there is “No doubt that we have a long way to go.” He went on to say that “HIV is not a crime. It should not be criminalized,” and delivered the news that Prime Minister Justin Trudeau has “introduced legislation to quash and erase previous unjust convictions.”

“HIV non-disclosure is a public health issue,” he said, and also, “Mabior made clear that future scientific development must be taken into account.” He went on to say that the use of the aggravated sexual assault provision “deserves further consideration… we want to get this right and are committed to taking the time and resources to do so.” It was remarkable to hear such positivity about HIV decriminalization from a government representative and it drew a big hand of applause.

Next came a panel discussion on “Criminalization in Canada and Internationally”, which I didn’t get to attend as peers on the panel didn’t want any media presence during the discussion.

The subject of the second panel was “The Science and its Interaction with the Law,” and that panel featured Megan Longley, a criminal defense lawyer who was the counsel in R v JTC (NSSC, 2013) as well as Art Poon, an Assistant Professor at Western University.

Megan’s talk was on the role of scientific evidence in avoiding wrongful convictions. As she told us, she’s a lawyer who also likes science and who had come to feel that the current state of HIV criminalization made little rational sense. She impressed on us the importance of science in proving these cases and delivered a short “Prosecution 101” as it applies to aggravated sexual assault. One of the more startling points made was that sexual assault cases are in fact very difficult to convict. Only about 3% of them do. Until, that is, you factor in HIV. In HIV-related sexual assault cases the rate is over seventy percent. And once we start to factor in such things as race or background of the defendant, a very disturbing picture emerges.

Art Poon spoke on “Phylogenetic Forensic Science and Implications for HIV Criminalization”, which turned out to be about the limitations of said evidence in such cases. “Phyloclusters offer great potential for misuse… there is little talk about the implications of these methods.” Although two individuals may carry HIV strains that are closely related, these will not necessarily be unique to the two parties and could extend to other persons within the same transmission network. More on this in my interview with Edwin J. Bernard, here.

After lunch we reconvened for an update on the campaign for prosecutorial guidelines by Glenn Betteridge, who is a staff lawyer with HIV & AIDS Legal Clinic Ontario (HALCO). Glenn spoke on how in Canada the provinces are responsible for the administration of justice. The Attorney General can suggest or set guidelines for prosecution lawyers but cannot dictate. Cops lay charges. Crown attorneys filter and stream them and they go forward if they’re deemed to have a chance of success and/or there’s sufficient community interest.

B. C. has a guideline for prosecuting these cases, as do England, Wales and, since 2014, Scotland. But we heard that here in Canada the Attorney General had previously ignored the science as well as community advocacy and had secretly devised a playbook. Since then, Ontario has been making favorable statements regarding HIV criminalization, but seem to have adopted a “wait and see” stance.

As to where the resistance to reform is coming from, Glenn told us that Ministers have been passive, disinterested because they see the issue as a loser politically. Also, Attorneys General are not used to being challenged or to being responsive to outside concerns. He went on to call the situation “a study in bureaucratic intransigence.”

We then heard presentations by Notisha Massaquoi, who is the Executive Director of Women’s Health in Women’s Hands and who spoke on “Critical Feminist Approaches to HIV Criminalization and the Law of Sexual Assault” and then Richard Elliott laid out the pros and cons of “Criminal Code Amendments as a Strategy to Limit Unjust HIV Criminalization.”

Ryan Peck, co-chair of the Ontario Working Group on Criminal Law and HIV Exposure spoke to us then on “Forging a community consensus: identifying elements of a consensus statement,” and the Canadian Community Consensus Statement on Ending Unjust Prosecutions for HIV Non-disclosure, following which we split up into groups for an exercise in forging consensus on these questions:

1 – Do you think it is ever appropriate to prosecute non-disclosure of HIV-positive status as a crime? Why or why not? What kind of situations might be legitimately prosecuted? What kind of situations should clearly be excluded from prosecution?

2 – Do you think it’s ever appropriate to prosecute non-disclosure of HIV-positive status as “sexual assault?” Why of why not?

3 – What do you think about changing the criminal code to exclude prosecutions for sexual assault and instead having a specific offence about non-disclosure?

What this exercise showed me is that even within our community it’s not easy to get consensus on these issues. And while the majority clearly favoured prosecutorial guidelines, it wasn’t unanimous. One lady stated that such guidelines would be of no use to her because as a Black woman she will always be a target for criminalization in our society.

Directly following the exercise there was discussion, facilitated by Tim McCaskell, a founding member of AIDS Action Now! and Valerie Pierre-Pierre, Director of the African and Caribbean Council on HIV/AIDS in Ontario (ACCHO)

Attending the Rethinking Justice Symposium presented a truly fascinating overview of the current state of play on the issue of HIV criminalization and I heard several people observe that here in Canada we seem to be on the cusp of some really favorable developments after moving so long in the other direction. Cautious optimism, as I said.

Here’s hoping that wave of optimism turns out to be justified and that we can ride it into a better future.