US: Should we criminalize HIV? [Op-ed, St Louis American]

By Opal Jones and Theodore (Ted) Kerr | Posted: Wednesday, August 19, 2015 8:47 pm

Opal M. Jones

In the last month we saw Michael Johnson, a 23-year-old black college student, sentenced to 30-plus years in prison on HIV criminalization-related charges. David Magnum was also sentenced to 30-plus years in prison, and Robert Smith has been held on $50,000 bail for attempting to expose a person to HIV.

This is part of a disturbing trend: an ongoing criminalization of people living with HIV, at the same time as more people are living with HIV in Missouri. This prompts us to ask: Is criminalization how to deal with HIV?

As the president and CEO of Doorways, an interfaith organization providing housing and supportive services for people living with HIV/AIDS, and a Doorways volunteer, we say no.

Every day we see how support for people living with HIV is what is needed to end the epidemic, not criminalization, something echoed in a 1987 op-ed printed in this paper, “AIDS is a public health problem, not one that should be criminalized.” Written before MO. REV. STAT. § 191.677 was passed, the op-ed illustrates that even when less was known about the virus, it was understood that isolation and penalization were not answers to the crisis.

Yet, since 2008, we have seen more than 15 prosecutions and arrests for HIV exposure in Missouri. Meanwhile, the number of people living with HIV in the state is increasing. In 2008, 9,877 people in Missouri were living with HIV; by 2013, the number rose to 11,704. While this reflects the good work Doorways and other care providers are doing – people with HIV are living longer – it also indicates there has not been a significant drop in new cases.

Anecdotally, we see the majority of those charged for failure to disclose are black men, and an article in the Journal of AIDS Behavior reports “sentences of black individuals arrested for HIV exposure were significantly more severe than the sentences of their white counterparts.” Black people already bear a heavier burden of HIV. According to the Center of Disease Control, “the estimated rate of new HIV infections among blacks/African Americans (68.9) was 7.9 times as high as the rate in whites (8.7).”

Missouri’s HIV criminalization law – and similar ones existing in 33 other states – fly in the face of what has been learned about HIV in the last three decades. This exceptional dehumanization of people makes it harder for people with HIV to receive and maintain care, making criminalization a leading driver in the ongoing epidemic.

When entering into an intimate relationship, we believe that people should clearly communicate and disclose their status. However, people are being imprisoned based on a law that dictates it is 100 percent up to the person living with HIV to disclose their status and prove the disclosure, releasing other willing partners of responsibility. This may be unrealistic to prove and is not applicable for any other medical condition.

Medical advances have made it possible for people living with HIV to have an undetectable viral load, making it nearly impossible to transmit the virus. But to be undetectable, you need what for 27 years Doorways has been providing to people who need assistance: stable housing, access to care and hope.

But we can’t do our job if people living with HIV do not know their status. Reasons we hear for not getting tested: fear of a positive status being confirmed; not knowing where to go for care; not wanting to have to disclose “risky” behaviors and partners to authorities; and people often do not get tested because of the burden of knowing. The earlier someone knows their status, the sooner they are able to make treatment decisions and adapt to being someone with a communicable condition.

If we are worried about HIV, we need to come up with something better than criminalization.

Opal Jones is president and CEO of Doorways. Theodore (Ted) Kerr, a Masters student at Union Theological Seminary, is a Doorways volunteer.

Prison time for HIV?

Prison time for HIV? It’s possible in Veracruz

El Daily Post, August 6th 2015

New legislation passed by the Veracruz state Congress calls for up to five years in prison for “willfully” infecting another with HIV, which can lead to AIDS. The measure is fraught with legal, medical, public health and human rights problems, but supporters insist it will help protect vulnerable women.

 

The Veracruz state Congress has unanimously approved legislation that calls for prison time for anyone who intentionally infects another person with the HIV virus or other sexually transmitted diseases.

The amendment to the state penal code makes Veracruz the second Mexican state (after Guerrero) to criminalize the sexual transmission of illnesses. Another 11 states have sanctions in the books for infecting others with “venereal diseases,” a term and concept no longer used in the medical community.

But Veracruz has stipulated a more severe punishment than the other states — from six months to five years in prison. Guerrero also has a maximum of five years, but it’s minimum is three months.

The bill was promoted by Dep. Mónica Robles Barajas, a member of the Green Party, which is allied with the ruling Institutional Revolutionary Party. She said the legislation is aimed at protecting women who can be infected by their husbands.

“It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.

The legislation, however, raises serious questions, both legal and medical, as well as concerns about human rights.

The most obvious problem is the notion of “intentional” infection. Robles emphasizes that the bill is based on a “willful” passing of the virus, which she defines as a carrier having sexual relations when he or she is aware of his or her HIV infection.

But the notion of intentionality in such cases is a complicated one for prosecutors, legal experts say. The he-said/she-said factor can be a sticking point, according to Luis González Plascencia, a former head of the Mexico City human rights commission, with the accusation likely to be based on one person’s testimony.

“There could be ways to show through testimony that there was an express intention to infect,” González told Animal Político. “But that’s always going to be circumstantial.”

A likely abuse of the law, he said, is attempted revenge or blackmail. An angry spouse or other partner can, with a simple declaration, create a legal nightmare.

Even if the issue of intentionality can be overcome, the very notion of criminalizing HIV infection is controversial. AIDs and human rights experts are against it.

One of them is Ricardo Hernández Forcada, who directs the HIV-AIDS program at Mexico’s National Human Rights Commission (CNDH). International experience, he says, indicates that punitive policies accomplish little besides government intrusion into private life. (Eastern Europe and Southeast Asia are regions where laws similar to the new one in Veracurz have existed.)

A Veracruz non-governmental organization called the Multisectoral HIV/AIDS Group issued a communiqué in response to the new legislation, declaring, “Scientific evidence shows that legislation and punishment do not prevent new infections, nor do they reduce female vulnerability. Instead, they negatively affect public health as well as human rights.”

González concurred. “The only thing that’s going to happen is that there will be another crime in the penal code that won’t accomplish anything except generate fear,” he said.

The Multisectoral Group also pointed out a disconnect between the law and medical science. It’s  virtually impossible, the group says, to determine with certainty who infected whom with a sexually transmitted disease.

“Phylogenetic analyses alone cannot determine the relationship between two HIV samples,” the group said in its release. “They cannot establish the origin of an infection beyond a reasonable doubt, or how it occurred, or when it occurred.”

Robles, for her part, objects to the notion that the legislation criminalizes HIV carriers, insisting that the target is the intentional infection of another through sex. She emphasized that the aim of the new law is to protect women, who are often in a vulnerable situation.

“It’s directed much more at protecting women than homosexual groups,” she said. “There is a high incidence among women because there is no awareness of the risk they run.”

Opponents, however, see the new law as a step backward for men and women, and for public health in general, insisting that penalization comes at the expense of prevention.

“Knowing that they could be at risk of prosecution, people won’t get tested,” the CNDH’s Hernández Forcada said. “These measures inhibit people’s will to know their diagnosis.”

US: ‘Turn It Up!’ an innovative resource for prisoners with HIV needs your help reaching Kickstarter goal

Sero is a national network of people with HIV and allies fighting HIV-related stigma, discrimination and criminalization by engaging and empowering ourselves and others with HIV to speak and advocate, conduct original research, document the experiences of those criminalized, educate communities and work in partnership with others to mobilize for change.

They particularly work to support and strengthen networks of people with HIV, especially those representing key populations, to bring their voice and insight to the discussion and development of policy, delivery of services and the media.

They have received many letters from people with HIV and/or hepatitis who are currently in prison, many on charges arising from their HIV or hepatitis status. Cindy Stine, Sero’s Prisoner’s Network co-ordinator, responds to these inquiries, provides research assistance and sometimes is able to help find legal counsel or other needed resources.

From this informal and growing network, it soon became clear that many people who are incarcerated have unique knowledge about effective strategies to maintain good health and access healthcare while behind bars.

Last September, Sero gathered a group of people who have been incarcerated or work with those who are, as well as HIV and hepatitis experts.

They spent time brainstorming how they could facilitate the sharing of advice, insights and tips from people who are in prisons or jails concerning how they stay as healthy as possible.

That led to the creation of Turn It Up! a new print resource guide for people with HIV and/or hepatitis who are incarcerated, as well as those newly-released from prison or jail and their friends and families.

Written and edited in large part by people who have themselves been incarcerated and/or have HIV and/or hepatitis, Turn It Up! will help those serving time navigate healthcare and stay as healthy as possible.

Laura Whitehorn and Suzy Martin, two longtime and prison reform activists, editors and HIV experts, are co-editing Turn It Up! They are both former editors at POZ magazine and Suzy works closely with Prison Health News.

To produce Turn It Up!, they worked with more than two dozen others, including contributors from prisons and jails in a dozen states, bringing an authentic, passionate and informed voice to the pages of Turn It Up!

The challenge now is to get it distributed to those who need it the most. Sero have launched a modest Kickstarter campaign, that includes this video explaining the project, which they hope will raise at least $5,000 to help with distribution costs.

Support the Kickstarter campaign here.

AFAO Policy Analyst Michael Frommer highlights the many types of anti-HIV criminalisation advocacy undertaken by the Canadian HIV/AIDS Legal Network

The 8th IAS Conference on HIV Pathogenesis, Treatment and Prevention (IAS 2015) is on in Vancouver, Canada, this week. AFAO Policy Analyst Michael Frommer reports back on the pre-conference community forum. 

Key human rights challenges, such as criminalisation of HIV transmission, were centre stage at the IAS community forum on Saturday 18 July.

Alison Symington, co-director of Research and Policy at the Canadian HIV/AIDS Legal Network (Legal Network), described the challenge of advocacy and policy work in Canada in the face of ongoing criminalisation.

Aside from the significant justice issues when charges are laid for HIV non-disclosure, exposure or transmission, she also identified the serious of issue of people threatening their partners with an allegation, when there is relationship conflict, and how this in particular affects women who may be in abusive relationships.

In Canada, as in Australia, most of the people charged to date have been male heterosexuals, with a strong racialised element – mainly Black men. Since the mid-1990s, there has been an increase in the proportion of gay men charged.

Despite the fact that men make up the majority of those charged, Alison has investigated the pernicious effects of criminalisation on women. She explained how the ‘informal’ criminalisation of HIV positive mothers works, with their sense that their parenting is being under surveillance.

She outlined a huge range of advocacy and policy activities being undertaken by the Legal Network in response.

1) Legal defence strategy and intervention

Tactics include contacting the defence lawyers of individuals who have been charged with criminalisation related offences. The Legal Network also intervenes in the formal court proceedings and provides relevant scientific evidence.

2) Campaigns and advocacy

This has involved the Legal Network’s participation in the ‘Stop the Witch Hunt’ campaign targeting prosecutors, undertaken in collaboration with the AIDS Action Now. Legal Network staff also sit in court during trials, to make clear to judges/prosecutors that the community is monitoring developments.

3) Raising awareness/education

This education work is targeted at raising understanding among judges and among the community.

4) Working with doctors/scientists

A key piece of work was the Canadian Scientist Statement on HIV transmission risk. The Legal Network organised for 70 leading scientists from across Canada to sign this document which explained clearly the actual levels of risk of HIV transmission.

5) Distinguishing between HIV non-disclosure and sexual assault

HIV non-disclosure/exposure/transmission charges in Canada are made under the Canadian criminal law as an aggravated charge using the sexual assault provisions. The Legal Network aims to work with domestic violence/feminist organisations to ensure that HIV-related jurisprudence does not circumvent the appropriate application of sexual assault laws.

6) Prosecutorial guidelines

This has been an ongoing area of work across Ontario, Quebec and British Columbia. Ontario most recently advocated for the adoption of guidelines, but without adequate community input the Government drafted guidelines were dropped. There is still a desire to pursue appropriately formulated guidelines in future.

Marama Pala (in the audience) highlighting Australia’s public

health response to MC Dazon Dixon Diallo.

The comprehensive advocacy and policy response taken by the Canadian Legal Network is extremely impressive.

With one of, if not the highest rates per capita of criminalisation in the world, it is obviously very necessary in the Canadian context.

While some circumstances differ, there are a great many ideas that may be drawn upon for responding to HIV criminalisation in the Australian context.

US: As college student, Michael Johnson, 23, is sentenced to 30 1/2 years for HIV exposure, advocates organise and condemn Missouri’s HIV-specific law as ‘barbaric’

Yesterday, Michael Johnson, 23, was sentenced to 30 1/2 years in prison after being found guilty on May 14th of five counts stemming from the accusations of three people who said he exposed them to the virus without their knowledge.

For the most serious charge, recklessly infecting another with HIV, Johnson will serve 30 years in prison. The remaining four charges, for HIV ‘exposure’, carried sentences of 5.5, 5.5, 5.5 and 14 years. Johnson will serve his sentences concurrently, meaning he will spend a total of 30 1/2 years in prison.

Mr Johnson’s case created considerable attention from HIV, gay and social justice advocates, such as this open letter from black gay men, and the press release from The Center for HIV Law and Policy below.

Tomorrow (Wednesday 15th July), the Counter Narrative Project, HIV Prevention Justice Alliance and Positive Women’s Network – USA will hold a webinar to provide an update on the current on-the-ground efforts to support his appeal and a discussion of advocacy strategy from a legal, media, intersectional and activism perspective.

Click on this link to register for Michael L. Johnson: Strategizing collectively for justice.

Sentencing of Missouri College Student in HIV “Exposure” Case Decried As “Barbaric” 

UNAIDS Reference Group on HIV and Human Rights updates statement on HIV testing to include the “key trend” of “prolific unjust criminal laws and prosecutions”

The UNAIDS Reference Group on HIV and Human Rights has updated its statement on HIV testing  — which continues to emphasise that human rights, including the right to informed consent and confidentiality, not be sacrifced in the pursuit of 90-90-90 treatment targets — in the light of “three key trends that have emerged since the last statement regarding HIV testing was issued by the UNAIDS Reference Group (in 2007).”

One of these is “prolific unjust criminal laws and prosecutions, including the criminalization of HIV non-disclosure, exposure, and transmission.” The other two involve the recognition that HIV treatment is also prevention, and policies that aim to “end the AIDS epidemic as a public health threat by 2030.”

This statement is an important policy document that can be used to argue that public health goals and human rights goals are not mutually exclusive.

The Reference Group was established in 2002 to advise the Joint United Nations Programme on HIV/AIDS (UNAIDS) on all matters relating to HIV and human rights. It is also fully endorsed by by the Global Fund to Fight AIDS, Tuberculosis and Malaria Human Rights Reference Group.

This statement is issued at a time when UNAIDS and the Global Fund are renewing their strategies for 2016–2021 and 2017–2021, respectively.

To support these processes, the Reference Groups offer the following three key messages:

1. There is an ongoing, urgent need to increase access to HIV testing and counselling, as testing rates remain low in many settings. The Reference Groups support such efforts unequivocally and encourage the provision of multiple HIV testing settings and modalities, in particular those that integrate HIV testing with other services.

2. Simply increasing the number of people tested, and/or the number of times people test, is not enough, for many reasons. Much greater efforts need to be devoted to removing barriers to testing or marginalized and criminalized populations, and to link those tested with prevention and treatment services and successfully keep them in treatment.

3. Public health objectives and human rights principles are not mutually exclusive. HIV testing that violates human rights is not the solution. A “fast-track” response to HIV depends on the articulation of testing and counselling models that drastically increase use of HIV testing, prevention, treatment, and support services, and does so in ways that foster human rights protection, reduce stigma and discrimination, and encourage the sustained and supported engagement of those directly affected by HIV.

The section on HIV criminalisation is quoted below.

The criminalization of HIV non-disclosure, exposure, and transmission is not a new phenomenon, but the vigour with which governments have pursued criminal responses to alleged HIV exposures — at the same time as our understanding of HIV prevention and treatment has greatly advanced, and despite evidence that criminalization is not an effective public health response — causes considerable concern to HIV and human right advocates. In the last decade, many countries have enacted HIV-specifc laws that allow for overly broad criminalization of HIV non-disclosure, exposure, and transmission. This impetus seems to be “driven by the wish to respond to concerns about the ongoing rapid spread of HIV in many countries, coupled by what is perceived to be a failure of existing HIV prevention efforts.” In some instances, particularly in Africa, these laws have come about as a response to women being infected with HIV through sexual violence, or by partners who had not disclosed their HIV status.

Emerging evidence confrms the multiple implications of the criminalization of HIV non-disclosure, exposure, and transmission for HIV testing and counselling. For example, HIV criminalization can have the effect of deterring some people from getting tested and finding out their HIV status. The possibility of prosecution, alongside the intense stigma fuelled by criminalization, is good reason for some to withhold information from service providers or to avoid prevention services, HIV testing, and/or treatment. Indeed, in jurisdictions with HIV-specific criminal laws, HIV testing counsellors are often obliged to caution people that getting an HIV test will expose them to criminal liability if they find out they are HIV-positive and continue having sex. They may also be forced to provide evidence of a person’s HIV status in a criminal trial. This creates distrust in relationships between people living with HIV and their health care providers, interfering with the delivery of quality health care and frustrating efforts to encourage people to come forward for testing.

The full statement, with references, can be downloaded here and is embedded below.

HIV TESTING AND COUNSELLING: New technologies, increased urgency, same human rights

Sweden: HIV activists call for the abolition of the duty to disclose in line with scientific progress

The new knowledge we have today about the transfer risks, should contribute to a change in infectious disease control law design.

The duty to disclose for people living with HIV should be abolished as soon as possible, writes representatives from RFSL, RFSU and HIV Sweden.

HIV was included in the Swedish Communicable Diseases legislation in 1985. The purpose was to provide support for the measures it considered necessary to slow down the transmissions of HIV, an infection, they were convinced, that could become an epidemic out of control.

Despite the limited knowledge then available on HIV the Government noted in its preparatory work to the Act that: “If a cure is discovered meaning that infected people can become free of infection,  the perception of infectiousness willl obviously change. It would also be the same if one could find that the infection, whether a cure is available or not, is not contagious in some periods “(Prop. 1985/86: 13).

In October 2013 the Public Health Agency launched its knowledge base “Infectiousness in treated HIV infection.” The Authority concluded that the risk of transmitting HIV through sexual contact when a condom is used, is almost non-existent.

The risk is also considered as very small if a condom is not used.

In Sweden, over 90 percent of those who received a hiv diagnosis are on effective treatment today. In accordance with the intentions that were in the preparatory work to the country legislation in 1985, the knowledge we now have about transmission risks, should contribute to a change in infectious disease control law design.

One of the positions that RFSL, RFSU and HIV Sweden usually get to explain is precisely why we believe that the so-called disclosure duties should be removed for people living with HIV.

The duty to disclose is one of several precautions that people living with HIV must follow under the current disease control legislation. The duty to disclose requires that people living with HIV must inform their sex partners of their HIV.

he duty to disclose takes the focus away from what is hiv prevention most central message: that all people in sexual encounters should take responsibility to protect themselves and their partners.

So under the legislation this responsibility rests with the party who knows about his/her HIV as the duty to disclose. This despite the fact that over 90 percent of those currently living with HIV are taking effective treatment and are exposing a sexual partner to an almost non-existent risk of HIV transmission.

It stands in stark contrast to the fact that in most cases, it is those who do not know they have HIV who transmit the virus to others. The highest risk of transmission comes from this undiagnosed population.

This group is of course under no obligation to disclose information about which they know nothing, and therefore does not have anything to tell. The duty to disclose is therefore counterproductive and contributes to the stigmatization of people living with HIV who know about their status.

RFSL, RFSU and HIV Sweden are calling for a revision of regulations of the 2004 Infectious Diseases Act and the abolition of the duty to disclose.

We have met with opposition within the authorities, medical officers, their lawyers and policymakers. Often we are subjected to the view that we do not fully understand how the law works and a belief that we want to bring HIV out of the Communicable Diseases Act. That is not the case.

We believe that HIV must be included in the Communicable Diseases Act from a prevention and treatment perspective. But we believe that the law can easily be designed in such a way that HIV, and any other relevant diseases, are excluded from a conduct that is counter-productive, which departs from Prevention key messages, which stigmatizes people living with HIV, and is not in line with the knowledge we have today about transmission risks.

To make it easier for policy makers and officials, we have in collaboration with lawyers developed an example of how Diseases Act may be formulated to overcome the misconceptions there may seem to be about our position. The example can be downloaded here.

It is now our hope that the government ensures that the revision of the Infectious Diseases Act be implemented promptly and that the duty to disclose for people living with HIV can thus be abolished in the near future.

Christian Antoni Möllerop

Vice ‘Union

RFSL

 

Kristina Ljungros

Chairman of the Federation

RFSU

 

Christina Franzen

President

HIV Sweden

—————————————–

Den nya kunskap vi i dag har om överföringsrisker, bör bidra till en förändring av smittskyddslagstiftningens utformning.

Informationsplikten för personer som lever med hiv bör avskaffas snarast, skriver representanter från RFSL, RFSU och Hiv-Sverige.

1985 inkluderades hiv i den svenska smittskyddslagstiftningen. Syftet var att ge stöd till de åtgärder man ansåg nödvändiga för att bromsa överföringarna av hiv, en infektion man då var övertygad om att kunde bli en epidemi utom all kontroll.

Trots den begränsade kunskap som då fanns om hiv konstaterade regeringen i förarbetena till lagen att: ”Om något botemedel upptäcks som innebär att den smittade kan bli smittfri, kommer detta självklart att ändra synen på när smittsamhet föreligger. Detsamma blir förhållandet om man skulle finna att infektionen, oavsett om något botemedel finns att tillgå eller ej, inte är smittsam i vissa perioder” (Prop. 1985/86:13).

I oktober 2013 lanserade Folkhälsomyndigheten kunskapsunderlaget “Smittsamhet vid behandlad hivinfektion”. Där slår myndigheten fast att risken för att överföra hiv genom sexuell kontakt vid välfungerande behandling, när kondom används, är närmast obefintlig.

Risken bedöms även som mycket liten om kondom inte används.

I Sverige har över 90 procent av de som fått en hivdiagnos en välfungerande behandling i dag. I enlighet med de intentioner som fanns i förarbetena till smittskyddslagstiftningen från 1985, måste därför den kunskap vi nu har om överföringsrisker, bidra till en förändring av smittskyddslagstiftningens utformning.

 

Ett av de ställningstaganden som RFSL, RFSU och Hiv-Sverige oftast får förklara är just varför vi anser att den så kallade informationsplikten borde tas bort för personer som lever med hiv.

Informationsplikten är en av flera förhållningsregler som personer som lever med hiv måste följa enligt den gällande smittskyddslagstiftningen. Informationsplikten kräver att den som lever med hiv ska informera sina sexpartners om sin hiv.

Informationsplikten tar bort fokus från det som är hivpreventionens mest centrala budskap: att samtliga personer i det sexuella mötet bär ansvaret för att skydda sig själv och sin partner.

Så som lagstiftningen är utformad vilar ansvaret på den av parterna som vet om sin hiv att informera. Detta trots att över 90 procent av dem som i dag lever med hiv har en välfungerande behandling och därmed utsätter sexpartners för en närmast obefintlig risk för hivöverföring.

Det står i stark kontrast till det faktum att det är de som inte vet om att de bär på hiv som överför viruset i de flesta fall till andra. Det är alltså dessa odiagnostiserade det finns en stor risk att få viruset överfört från.

För denna grupp gäller förstås ingen informationsplikt då de inget vet och därför heller inte har något att berätta. Informationsplikten är därför kontraproduktiv och den bidrar till att stigmatisera personer som lever med hiv och vet om sin status.

 

RFSL, RFSU och Hiv-Sverige har sedan informationsplikten lagreglerades 2004 jobbat för en översyn av smittskyddslagen och ett avskaffande av informationsplikten.

Vi har stött på patrull inom myndigheter, smittskyddsläkare, deras jurister och bland beslutsfattare. Ofta bemöts vi av en uppfattning om att vi inte helt har förstått hur lagen fungerar eller en övertygelse om att vi vill ta hiv ut ur smittskyddslagen. Så är inte fallet.

Vi anser att hiv måste ingå i smittskyddslagen ur ett preventions- och behandlingsperspektiv. Men vi anser att lagen enkelt kan utformas på så sätt att hiv, och eventuellt andra relevanta sjukdomar, undantas från de förhållningsregler som är kontraproduktiva, som frångår det som är preventionens centrala budskap, som stigmatiserar personer som lever med hiv, och som inte ligger i linje med den kunskap vi numera har om överföringsrisker.

För att underlätta för beslutsfattare och tjänstemän har vi i samarbete med jurister tagit fram ett exempel på hur smittskyddslagen kan formuleras för att råda bot på de missuppfattningar om vårt ställningstagande som kan synas finnas. Exemplet kan laddas ner här.

Det är nu vår förhoppning att regeringen ser till att en översyn av smittskyddslagen sker skyndsamt och att informationsplikten för personer som lever med hiv därmed kan avskaffas inom en nära framtid.

Christian Antoni Möllerop

Vice förbundsordförande

RFSL

Kristina Ljungros

Förbundsordförande

RFSU

Christina Franzén

Ordförande

Hiv-Sverige

World Health Organization publishes analysis of impact of overly broad HIV criminalisation on public health

A new report from the World Health Organization, Sexual Health, Human Rights and the Law, adds futher weight to the body of evidence supporting arguments that overly broad HIV criminalisation does more harm than good to the HIV response.

Drawing from a review of public health evidence and extensive research into human rights law at international, regional and national levels, the report shows how each country’s laws and policies can either support or deter good sexual health, and that those that support the best public health outcomes “are [also] consistent with human rights standards and their own human rights obligations.”

The report covers eight broad areas relating to sexual health, human rights and the law, including: non-discrimination; criminalisation; state regulation of marriage and family; gender identity/expression; sexual and intimate partner violence; quality of sexual health services; sexuality and sexual health information; and sex work.

The authors of the report note that it provides “a unique and innovative piece of research and analysis. Other UN organizations are examining the links between health, human rights and the law: the United Nations Development Programme’s (UNDP’s) Global Commission on HIV and the Law published its report in 2012, and the Office of the High Commissioner for Human Rights (OHCHR) and United Nations Special Rapporteurs regularly report to the Human Rights Council on the impact of laws and policies on various aspects of sexual health. Nevertheless, this is the first report that combines these aspects, specifically with a public health emphasis.”

The points and recommendations made relating to overly broad HIV criminalisation (italicised for ease of reference) are included in full below.

Executive Summary: The use of criminal law (page 3)

All legal systems use criminal law to deter, prosecute and punish harmful behaviour, and to protect individuals from harm. However, criminal law is also applied in many countries to prohibit access to and provision of certain sexual and reproductive health information and services, to punish HIV transmission and a wide range of consensual sexual conduct occurring between competent persons, including sexual relations outside marriage, same-sex sexual behaviour and consensual sex work. The criminalization of these behaviours and actions has many negative consequences for health, including sexual health. Persons whose consensual sexual behaviour is deemed a criminal offence may try to hide it from health workers and others, for fear of being stigmatized, arrested and prosecuted. This may deter people from using health services, resulting in serious health problems such as untreated STIs and unsafe abortions, for fear of negative reactions to their behaviour or health status. In many circumstances, those who do access health services report discrimination and ill treatment by health-care providers.

International human rights bodies have increasingly called for decriminalization of access to and provision of certain sexual and reproductive health information and services, and for removal of punishments for HIV transmission and a wide range of consensual sexual conduct occurring between competent persons. National courts in different parts of the world have played an important role in striking down discriminatory criminal laws, including recognizing the potentially negative health effects.

3.4.5 HIV status (pages 22-23)

Although being HIV-positive is not itself indicative of sexual transmission of the infection, individuals are often discriminated against for their HIV-positive status based on a presumption of sexual activity that is often considered socially unacceptable.

In addition, in response to the fact that most HIV infections are due to sexual transmission, a number of countries criminalized transmission of, or exposure to, HIV, fuelling stigma, discrimination and fear, and discouraging people from getting tested for HIV, thus undermining public health interventions to address the epidemic.

Even where persons living with HIV/AIDS may be able, in principle, to access health services and information in the same way as others, fear of discrimination, stigma and violence may prevent them from doing so. Discrimination against people living with HIV is widespread, and is associated with higher levels of stress, depression, suicidal ideation, low self-esteem and poorer quality of life, as well as a lower likelihood of seeking HIV services and a higher likelihood of reporting poor access to care.

HIV transmission has been criminalized in various ways. In some countries criminal laws have been applied through a specific provision in the criminal code and/or a provision that allows for a charge of rape to be escalated to “aggravated rape” if the victim is thought to have been infected with HIV as a result. In some cases, HIV transmission is included under generic crimes related to public health, which punish the propagation of disease or epidemics, and/or the infliction of “personal injury” or “grievous bodily harm”.

Contrary to the HIV-prevention rationale that such laws will act as a deterrent and provide retribution, there is no evidence to show that broad application of the criminal law to HIV transmission achieves either criminal justice or public health goals. On the contrary, such laws fuel stigma, discrimination and fear, discouraging people from being tested to find out their HIV status, and undermining public health interventions to address the epidemic. Thus, such laws may actually increase rather decrease HIV transmission.

Women are particularly affected by these laws since they often learn that they are HIV-positive before their male partners do, since they are more likely to access health services. Furthermore, for many women it is either difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences, and they may therefore face prosecution as a result of their failure to disclose their status. Criminal laws have also been used against women who transmit HIV to their infants if they have not taken the necessary steps to prevent transmission. Such use of criminal law has been strongly condemned by human rights bodies.

Various human rights and political bodies have expressed concern about the harmful effects of broadly criminalizing the transmission of HIV. International policy guidance recommends against specific criminalization of HIV transmission. Human rights bodies as well as United Nations’ specialized agencies, such as UNAIDS, have stated that the criminalization of HIV transmission in the instance of intentional, malicious transmission is the only circumstance in which the use of criminal law may be appropriate in relation to HIV. States are urged to limit criminalization to those rare cases of intentional transmission, where a person knows his or her HIV-positive status, acts with the intent to transmit HIV, and does in fact transmit it.

Human rights bodies have called on states to ensure that a person’s actual or perceived health status, including HIV status, is not a barrier to realizing human rights. When HIV status is used as the basis for differential treatment with regard to access to health care, education, employment, travel, social security, housing and asylum, this amounts to restricting human rights and it constitutes discrimination. International human rights standards affirm that the right to non-discrimination includes protection of children living with HIV and people with presumed same-sex conduct. Human rights standards also disallow the restriction of movement or incarceration of people with transmissible diseases (e.g. HIV/AIDS) on grounds of national security or the preservation of public order, unless such serious measures can be justified.

To protect the human rights of people living with HIV, states have been called on to implement laws that help to ensure that persons living with HIV/AIDS can access health services, including antiretroviral therapy. This might mean, as in the case of the Philippines, for example, explicitly prohibiting hospitals and health institutions from denying a person with HIV/AIDS access to health services or charging them more for those services than a person without HIV/AIDS (167).

International guidance also suggests that such laws should be consistent with states’ international human rights obligations and that instead of applying criminal law to HIV transmission, governments should expand programmes that have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative.

3.6 Legal and policy implications (pages 29-30)

5. Does the state consider that establishing and applying specific criminal provisions on HIV transmission can be counter-productive for health and the respect, protection and fulfilment of human rights, and that general criminal law should be used strictly for intentional transmission of HIV?

The full report can be downloaded from the WHO’s Sexual and Reproductive Health website.