Spain: Supreme Court upholds nine year sentence for ‘reckless’ HIV transmission; BBC Mundo publishes analysis

Spain’s Supreme Court last week upheld a nine-year prison sentence for a man, known as ‘ABM’, who did not disclose his HIV-positive status to his former partner, who is now also living with HIV. Although the reports do not state under which general law he was prosecuted, it is likely to be Article 149 of the Criminal Code, grievous bodily harm.

According to a recent analysis of all previous cases that reached Provincial or Supreme Courts (1996-2012), Article 149 has used for similar cases, using the ‘state of mind’ of ‘dolus eventualis’ similar to concept of ‘recklessness.’ The nine year sentence is similar to two previous cases for alleged HIV transmission during otherwise consensual sex in Spain. (Sixteen sentences and 9 writs belonging to 19 cases were included in the analysis; 17 judged by criminal and two by civil jurisdictions – full text at the bottom of the page).

The Court’s judgment, dated December 4, 2014 but published last week, noted that that the Cantabria Provincial Court’s ruling was “sufficiently motivated” and dismissed ABM’s appeal which cited a violation of his right to the presumption of innocence and lack of credibility of his accuser, with whom he maintains a dispute over ownership of property.

The Supreme Court upheld the Provincial Court’s sentence of nine years in prison. He also has to pay his former partner compensation of 70,000 euros.

According to the judgment, cited in several Spanish language media reports (the most detailed of which was in 20 minutos), ABM was diagnosed in April 2000. In 2007 he began a romantic relationship with the complainant which lasted until 2012. It was alleged that ABM did not disclose to her that he was living with HIV despite having condomless sex. In 2011, she began to suspect that her partner may be living with HIV.

The Court found there was nothing to suggest that she was already HIV-positive when she arrived in Spain (from Peru), based on her own testimony, her medical history and her GP, although there is no mention of phylogenetic analysis being used to attempt to show a link between the viruses. The Court also noted that the woman is asymptomatic and on antiretroviral treatment.

BBC report and analysis

On Friday, BBC Mundo (the BBC’s Spanish language BBC World website) published a longer analysis of the implications of overly broad HIV criminalisation in Spanish-speaking countries. I was interviewed for the piece, and am delighted to report that the journalist, Leire Ventas, produced a very good, balanced report.

Below is an approximate English translation of the Spanish language original.

Should knowing transmission of HIV be a crime?

January 30, 2015

A jail sentence in Spain rekindles debate over whether criminal law should apply to people who transmit the human immunodeficiency virus.Spain’s Supreme Court upheld the sentence of nine years in prison for a man who hid his HIV positive status from partner, infecting her with HIV.

The Court did not admit the appeal filed by the defendant.

This appeal had alleged violation of the right to presumption of innocence and lack of credibility of the victim, who maintains a dispute over ownership of a property.

According to the facts in the case, the convicted man was diagnosed HIV-positive in April 2000 and began a relationship with the woman in 2007.

They were together until 2012.

According to the Court, during those five years the defendant hid that he was HIV-positive from his partner and had sex without protection.

In 2011, woman began to suspect that her partner may have the virus and subjected to analysis, which confirmed infection.

“Intentional transmission”

Given this statement of facts, the Court found that the defendant had deliberately concealed his condition and that was the reason it upheld the ruling.

In the same vein, intentional transmission is the only case in which the Joint United Nations Programme on HIV / AIDS, UNAIDS, considers appropriate to apply the criminal law to people who transmit HIV or expose others to the virus.

“That is, when the person knows their HIV-positive serostatus and acts with intent to transmit or indeed does transmit,” says the report Criminalization of HIV Transmission, 2008 and its revision in 2013 the agency told the BBC.

“If a person known to be HIV-positive acts with the intention of transmitting the virus and transmits it (…), the damage justifies punishment,” it adds.

“In other cases, legislators, prosecutors and judges should reject the application of criminal law”.

Other cases

According to UNAIDS, the law should not apply to cases where there is no “significant risk” of transmission or where the person did not know they were HIV-positive, did not understand how HIV is transmitted, disclosed their status to the person at risk, or did not for fear of violence.

And neither should the law be used against someone who took “reasonable steps” of protection to reduce the risk of transmission or who previously agreed with the other person “a level of mutually acceptable risk”.

Thus, the agency recommends that governments legislate specifically to prevent HIV and only apply general criminal law to cases of intentional transmission.

They should also “develop guidelines to limit the discretion of the police and prosecutors in the application” of criminal law.

And UNAIDS believes that the latter creates “a real risk” of increasing stigma and discrimination.

“It is very likely that prosecutions and convictions fall on members of marginalized groups such as sex workers, men who have sex with men and people who inject drugs,” it says.

Obligation to disclose

For that reason, the agency also recommends repealing the legal obligation to disclose one’s HIV status or that of others, in the case of health workers, that exist in some countries.

“Everyone has the right to privacy regarding their health and should not be required by law to disclose such information, especially when it may cause serious stigma and discrimination and possible violence.”

It considers inappropriate to enact laws criminalising mother-to-child transmission of the virus.

“Everyone has the right to have children, including women living with HIV,” said UNAIDS.

It adds: “When pregnant women are advised on the benefits of antiretroviral therapy, almost all access treatment”.

The position of Edwin Bernard, co-ordinator of HIV Justice Network, a network of advocates providing information and international legal policy advice on HIV criminalisation, is not far from the recommendations of the UN programme.

“The only cases where it is appropriate to apply the criminal law is when there has been intent and these are usually very rare,” he tells the BBC.

He stressed that “not disclosing you have the virus, and keeping it a secret is not the same as wanting to spread it.”

There are several reasons not to tell, according to the activist: stigma, violence, even denying the condition itself.

Awareness, not persecution

Therefore he believes that laws around HIV in countries should be aimed at raising awareness and support for the eradication of the disease, and not the prosecution.

Latin America is a region particularly aware of this, he says.

“It has a good record of understanding that with regard to HIV the law should support and not persecute”.

“There have been very few known cases of prosecution for HIV transmission in Latin America. Most have taken place in Brazil and under a general, not specific, criminal law”.

In Spain, by contrast, between 1996 and 2012, 19 legal [or civil] cases were recorded.

This is registered in the report Temporal trends, characteristics and evidence of scientific progress in legal complaints for alleged sexual HIV transmission: 1996-2012.

However, the country with the most prosecutions is the United States, where 30 states have specific legislation on HIV.

“After eight years following up the issue, I can say that judicial systems, prosecutors and judges do not understand how the science has advanced, how the life expectancy of those with the virus has increased. They should know that the risk of transmission is very low “, says Bernard.

For the activist, the ideal situation would be to only have one or two lawsuits per year related to the topic.

“The law should be used, for example, in cases of rape. But when sex is consensual and those involved are aware of the risks, responsibility should also be shared.”

F. Bolúmar-Montero, M.J. Fuster-Ruiz de Apodaca, M. Weait, J. Alventosa & J. Del Amo (2015) Time trends, c…

US: In depth interview with Ken Pinkela whose change.org campaign to review his unjust court-martial has more than 73,000 signatures

Bob Leahy: Thank you for talking to PositiveLite.com about your case. Now before we get in to that, I want you to tell me first your background. Ken Pinkela: Sure! Ken Pinkela is still a card-carrying Lieutenant Colonel in the (US) army.

South Africa: Forced or involuntary disclosure in healthcare settings disproportionately affecting women resulting in discrimination and gender-based violence, despite constitutional protections

Editor’s note: This story is part of a Special Report produced by The GroundTruth Project called “Laws of Men: Legal systems that fail women.” It is produced with support from the Ford Foundation. Reported by Tracy Jarrett and Emily Judem.

An HIV diagnosis is no longer a death sentence, thanks to advances in medicine and treatment in the last 30 years. But stigma against HIV/AIDS and fear of discrimination still run strong in South Africa, despite legal protections, as well as drastically improved treatment, prevention techniques and education. Today an estimated 19 percent of South African adults ages 15-49 are living with HIV.

And women, who represent about 60 percent of people living with HIV in South Africa, face a disproportionately large array of consequences, including physical violence and abuse.

“Upon disclosure of women’s HIV positive status,” reads a 2012 study by the AIDS Legal Network on gender violence and HIV, “women’s lives change, due to fear and the continuum of violence and abuse perpetrated against them.”

Although forced or involuntary disclosure of one’s HIV status — along with any discrimination that may result from that disclosure — was made illegal by South Africa’s post-apartheid constitution, experts and advocates say that public knowledge of these laws is limited and the legal system is not equipped to implement them.

Not only are women disproportionately affected by HIV, but they are also more likely to know their status. More women get tested, said Rukia Cornelius, community education and mobilization manager at the NGO Sonke Gender Justice, based in Johannesburg and Cape Town, because unlike men, women need antenatal care.

And often, she said, clinics give women HIV tests when they come in for prenatal visits.

The way hospitals and clinics are set up also are not always conducive to protecting privacy, said Alexandra Muller, researcher at the School of Public Health and Family Medicine at the University of Cape Town.

“People who provide services in the public system, at the community level, are community members,” said Muller. “This is an important dynamic when we think about stigma and disclosure.”

Doctors and nurses can see 60 to 80 patients per day in an overcrowded facility with shared consultation rooms, Muller said.

“There’s not a lot of consideration for how is a clinic set up,” added Cornelius, so that “a health care worker who has done your test and knows your status doesn’t shout across the room to the other health care worker, ‘okay, this one’s HIV-positive, that file goes over there.’”

Once HIV-positive women disclose their status, willingly or not,they are disproportionately affected by stigma because of the direct link between HIV and gender violence.

Uganda: HIV Prevention and Management Act should be seen in context with Anti-Pornography Act, Anti-Homosexuality Act and Narcotics Law says OSF

On November 20, Uganda’s parliament passed the Narcotic Drugs and Psychotropic Substances (Control) Bill, also known as the Narcotics Law. A draconian piece of legislation, the law purports to deter drug abuse by imposing inhumanely long prison sentences-a conviction for simple possession can land a person in a cell for 25 years.

Sex, criminal law & HIV non-disclosure: What is wrong with Canada’s approach to HIV non-disclosure? (Canadian HIV/AIDS Legal Network, 2014)

This is the second of two short videos from the Canadian HIV/AIDS Legal Network explaining what the law currently is relating to HIV non-disclosure (covered in Part 1) and what is wrong with this approach. Watch Part 1 here: http://bit.ly/1oMs1DM

The Criminalization of HIV in Canada

(32 mins, BearPaw Media, Canada, 2014)

The Canadian Aboriginal population is one of the fastest growing groups being diagnosed with HIV today. Due to a lack of education, people living with HIV continue to face fear and discrimination. Court and legislator involvement in their lives makes matters even more complicated. This video features four Aboriginal Canadians diagnosed with HIV. In hearing their stories, the viewer will learn how they cope with the stigma surrounding their illness and live within the new rules governing the most intimate part of their lives.

See more at: http://ncsa.libguides.com/bearpawvideos

Canada: Social media campaign ‘Think Twice’ uses video to ask gay men to reconsider pressing charges for HIV non-disclosure

Last week saw the launch of a new phase of a targeted social marketing campaign by AIDS ACTION NOW! (AAN) that features 42 short videos from members and allies of Toronto’s LGBTQI community.

‘Think Twice’ asks HIV-negative and untested gay, bi, queer and trans men to reconsider pressing charges for HIV non-disclosure (where there was no alleged HIV transmission) when they discover that a sexual partner has not disclosed their HIV-positive status before sex.

In October 2012, the Supreme Court of Canada confirmed that non-disclosure of known HIV status can be charged as aggravated sexual assault – with up to life imprisonment and sex offender registration – even if the person with HIV uses a condom: in order to avoid legal liability, they must also have a low viral load.

‘Think Twice’ is an AAN campaign originally launched just prior to the Supreme Court’s ruling aimed at decreasing the number of criminal prosecutions related to HIV non-disclosure. AAN want people involved in the criminalisation of HIV non-disclosure—people living with HIV, their sexual partners, police, Crown prosecutors, health care providers and others—to consider the complexity and uncertainty of Canada’s overly broad approach to HIV criminalisation, and the implications of their role in criminal prosecutions for HIV non-disclosure.

The first part of their campaign targeted Crown prosecutors since they play a pivotal role in driving criminal prosecutions.

Since December 2012, the ‘Think Twice’ campaign has also focused on another key advocacy target – potential complainants.

This new phase of the ‘Think Twice’ campaign focuses specifically on gay, queer, and trans men and other men who have sex with men, due a change in community norms in the past few years that has resulted in an increase in the numbers of men going to the police to lay charges against other men living with HIV.

According to the Canadian HIV/AIDS Legal Network, while the majority of cases in Canada are against men who had sex with women, an increasing number of gay men and other men who have sex with men are being charged and prosecuted in Canada. Whereas there were only five known cases prior to 2006, a further 25 cases have been tracked up to December 2013.

In 2014, there has been at least one new case against a gay man. Another – where two men met in a Montreal sauna – dating back to 2005, is due to be heard by the Supreme Court of Canada next month.

For this latest phase of the ‘Think Twice’ campaign, AAN placed an open call for gay, queer, bi and trans men, and their allies, to make a video that answered the question: ‘In 45 seconds what would you say to gay men to convince them to think twice before going to the police when a sex partner hasn’t disclosed to them.’

Although they only expected to make 25, a total of 42 individuals made videos, in a project organised by Jordan Bond-Gorr, Lauryn Kronick, Tim McCaskell and Eric Mykhalovskiy and filmed by multi-disciplinary artist, John Caffery, in Toronto over one weekend in August.

The videos – along with the website www.thinktwicehiv.com – were launched on 18th November at Toronto’s Buddies in Bad Times theatre.

This compilation of 18 of the videos, produced by the HIV Justice Network, highlights the breadth of messages and the range of stakeholders involved.

It features (in order of appearance):

and John Greyson.

For more information about this campaign, visit the ‘Think Twice’ FAQ page.

Germany: Female sex worker with HIV found guilty again of perceived ‘HIV exposure’ locked up for at least nine years under ‘preventive detention’ law [Updated]

The District Court of Oldenburg has sent a 30-year-old female sex worker to prison for at least nine years under Germany’s ‘preventive detention’ law, because she has shown a pattern of not disclosing to clients that she was living with HIV before they chose to have condomless sex with her.

The judge sentenced the woman from the north German port town and naval base of Wilhelmshaven to four years after finding her guilty of two counts of attempted aggravated assault (for perceived HIV exposure), with at least five years further ‘preventive detention’.

The woman had previously been found guilty of of attempted aggravated assault (for perceived HIV exposure) and sentenced to two and a half years in prison by the District Court in Wilhelmshaven in early 2010. This was increased to three and a half years by the Oldenburg District Court in late 2010.

According to the prosecution, this latest case involved three different male clients between August and November 2013.

This trial took place in private without any members of the media or public able to attend, apparently to protect the privacy of both the accused and her clients.

A spokesperson for the Oldenburg Regional Court told NDR.de that ‘preventive detention’ can be imposed for offenses “directed against life and limb. Also, for repeat offenders, the courts may order a preventive detention. In addition, preventive detention serves to protect the public from dangerous offenders.”

The Court believed they were justified under all three criteria.

The woman has been in custody since March 2014. After serving four years in prison for the ‘attempted aggravated assault’ charges (for perceived HIV exposure), she will remain in custody for a minimum of five more years. She will then be examined by an expert who will decide whether or not she can be released.

Source: NDR.de Ungeschützer Sex trotz HIV: Frau wird sicherungsverwahrt 15 October 2014 and NWZ online Justiz soll Prostituierte aus Verkehr ziehen 17 September 2014.

Update 17 October 2014

Deutsche AIDS Hilfe has reacted to the ruling with a strongly worded press release, confirming that this is the first German HIV-related case to involve preventive detention, and stating that anyone who has condomless sex – especially with a sex worker – needs to be aware of the risk of acquiring HIV since “HIV cannot be locked up”.

Germany’s top HIV legal expert, Jacob Hösl, is now supporting the woman, and hopes to take her case to the Supreme Court.

The press release (in German) can be read here. An approximate English translation is below.

Deutsche AIDS Hilfe: HIV cannot be locked away!

The Oldenburg District Court has imposed a prison sentence and preventive detention against HIV-positive woman – a fatal signal for HIV prevention.

The District Court of Oldenburg has sentenced a 30-year-old HIV-positive woman from Wilhelmshaven to four years in prison and five years of preventive detention because the sex worker had unprotected sex with multiple clients. No HIV transmission is alleged.

Manuel Izdebski, from the Board of Deutsche AIDS-Hilfe (DAH) notes:

“This ruling sends a completely wrong signal and harms HIV prevention. That the criminal law only places the responsibility for HIV prevention on people with HIV remains a scandal. Imprisonment and preventive detention create a dangerous false sense of security. Everyone needs to know that with unprotected sex there is a risk of HIV infection received, and must protect themselves. HIV cannot be locked away!”

To the knowledge of Deutsche AIDS-Hilfe, this is the nation’s first case of this kind, in which preventive detention was ordered. The female accused had already been convicted several times for similar “offenses”. To our knowledge no actual HIV transmission occurred in any of the cases.

In the current case, the court informed us on request that the woman had interrupted her HIV treatment during the relevant time and so HIV transmission was therefore possible.

In an earlier judgment, the Oldenburg District Court noted that the woman had a “personality disorder” and suffered from “multi-year alcohol abuse”. And before the sexual encounters she is said to have consumed alcohol to a considerable extent.

“That makes it all the clearer that you have to protect youself against HIV and not be allowed to rely on your partner,” says DAH Board member Manuel Izdebski. “Maybe they are just not in a position to assume this responsibility.”

The criminalisation of (potential) HIV transmission is considered by Deutsche AIDS-Hilfe to be counterproductive in every way. Criminal liability is also made on false premises. Manuel Izdebski notes:

“The victim-offender paradigm of criminal law is totally inappropriate for consensual sex without a condom, because it ‘takes two to tango’. The condition [that might support a prosecution] that the person with HIV wants to harm their partner has not been met here. The reasons for the abandonment of protection are much more complex. For example, it may be unspeakably difficult to address their own HIV infection, because it is associated with a great deal stigma and the fear of rejection”.

South Africa: Section 27 lawyers argue that using attempted murder charges for potential HIV exposure during rape does a disservice to rape survivors and to people with HIV

Criminalising HIV transmission stigmatises HIV rather than shows concern for rape

Charging an HIV positive rapist with attempted murder for exposing his victim to the condition is counter-productive. The investigation and prosecution of the rape is more important.

A recent article on TimesLIVE highlighted the prosecution of a teacher charged with the rape of two young boys. The teacher is also charged with attempted murder for exposing one of the boys to HIV.

The rape charges should be prosecuted rigorously. The attempted murder charge should be dropped immediately. We give three reasons why: first, it distracts from the real issue – rape. Second, it isn’t supported by the science. Third, from a public health perspective, it’s dangerous.

The use of criminal charges, such as attempted murder, against people with HIV is referred to as the “criminalisation of HIV transmission” and has been endorsed by some but is opposed by most experts, human rights organisations and public health authorities such as the World Health Organisation (WHO) and UNAIDS.

Investigation and prosecution of rape is critical and desperately needs to be improved. We must prioritise this and we can’t afford to be distracted. The HIV status of the rapist is an aggravating factor that may speak to the appropriate sentence for the rapist, but adding an attempted murder charge smacks more of stigma against people with HIV than concern for rape.

To mix rape up with criminalisation of HIV transmission does a disservice to people who have been raped or are vulnerable to rape as well as a disservice to the fight against HIV. Also, to conflate rape and the criminalisation of HIV transmission is to victimise the exact demographic we intend to protect: women. This is not only because it distracts from the real issue of rape, but also because it loads the probability of prosecution towards women. In South Africa, like most places that have used criminal law to punish the transmission of HIV, one of the requirements for prosecution is that the accused know his or her status. Women know their HIV status at higher rates than men and, therefore, are more vulnerable to prosecution under these laws.

The science doesn’t support the charge of attempted murder for at least two reasons. First, for a person adherent to treatment, the risk of transmitting HIV is very low even without condom use, although this is still recommended for all people as an effective means of preventing pregnancy and transmission of sexually transmitted infections, including HIV. Second, even if transmission occurs, HIV isn’t a death sentence and giving it to someone, while serious, isn’t murder.

The practical goal of antiretroviral therapy, which keeps millions of people with HIV alive and thriving around the globe, is to reduce a person’s viral load (the measure of the HIV virus in the blood) to an undetectable level. The best evidence shows that people who have a viral load under 200 (in other words, people adherent to treatment) do not transmit HIV during unprotected vaginal or anal sex (although, again, condom use remains critical for reasons explained above.) Moreover, even if transmission occurs, the latest studies show that people adherent to treatment live long, healthy lives.

The importance of treatment leads to the next point: criminalising the transmission of HIV, as a general matter, stands to do far more harm than it could ever do good. As UNAIDS executive director Michel Sidibé explains, “Laws and prosecutions do not stop the spread of HIV. There is no correlation between the existence of these laws and the drop in HIV infections”. These types of criminal laws are more likely to perpetuate the spread of HIV than they are to curb it.

The vast majority of HIV transmissions occur between people who don’t know their HIV status. In order to reduce transmission, we must focus on encouraging people to know their status and get on treatment. Criminalising the transmission of HIV creates an incentive against knowing one’s status and further complicates the already-difficult discussion of disclosing one’s status to a partner.

In the context of consensual sex, some have argued that the criminalisation of HIV transmission will incentivise disclosure between potential sexual partners.

Should we encourage disclosure of HIV status between potential partners? Sure, in many cases. But that question gives rise to another: who has responsibility for safe sex? Only people with HIV? Or should everyone be encouraged to ensure that his or her sex is safe regardless of status or who his partner is?

Moreover, there’s no evidence that criminalising non-disclosure is an effective incentive for disclosure.

Finally, how does the historic and persistent stigma against people with HIV factor into an assessment of the costs and benefits of penalising non-disclosure?

If we want to encourage disclosure, we have a responsibility to create an environment in which it’s safe and comfortable for people to be open about having HIV if they so choose. The armament of the criminal system drives fear and stigma. We can’t have it both ways.

We want to empower people to make safe, informed choices about sex. How do we do this? It will help to be clear and honest about sex, rape, HIV, where the three are connected and where they aren’t.

One thing’s for sure though – we can’t prosecute our way out of the HIV epidemic.

[Feature] Beyond Blame: Challenging HIV Criminalisation

Beyond Blame: Challenging HIV Criminalisation

A pre-conference meeting for AIDS 2014

In July 2014, at a meeting held to just prior to the International AIDS Conference in Melbourne, Australia around 150 participants from all regions of the world came together to discuss the overly broad use of the criminal law to control and punish people living with HIV – otherwise known as ‘HIV criminalisation’.

The meeting was hosted by Living Positive Victoria, Victorian AIDS Council/Gay Men’s Health Centre, National Association of People Living with HIV Australia and the Australian Federation of AIDS Organisations, with the support of AIDS and Rights Alliance of Southern Africa, Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV, HIV Justice Network, International Community of Women Living with HIV, Sero Project and UNAIDS.

The meeting was financially supported by the Victorian Department of Health and UNAIDS.

This highlights video (12 mins, 50 secs) was directed, filmed and edited by Nicholas Feustel, with interviews and narration by Edwin J Bernard. The video was produced by georgetown media for the HIV Justice Network.

Download the highlights video from:http://vimeo.com/hivjustice/beyondblame

Below is a feature story based on the transcript of the highlights video, with additional links and information. You can also read Felicita Hikuam’s excellent (and remarkably quickly-written) summary of the day in ‘Mujeres Adelante’ and Daniel Reeders’s impressive collection of tweets from the meeting.

FEATURE STORY

A day to come together, find solutions, and move forward

Paul Kidd: On behalf of Living Positive Victoria, the Victorian AIDS Council, Australian Federation of AIDS Organisations, and the National Association of People with HIV Australia, welcome to Beyond Blame: Challenging HIV Criminalisation. We hope today’s event is inspiring and productive and that it kicks off the discussion about HIV criminalisation that will continue through the week and beyond.

Edwin Bernard: I think this is the largest HIV Criminalisation Pre-Conference to date at an International AIDS Conference. So the idea of the meeting is to bring people together. People who are working on this issue, who are interested in learning more about it, and we’re going to really work hard to come together, find solutions, and move forward.

Julian Hows: GNP+ has been involved in this issue of criminalisation since 2002, 2003, when we noticed an increase in the rates of prosecution in Europe effectively and started the first scan of the 53 signatory countries of the European Convention on Human Rights.

This has since become the Global Criminalisation Scan, an international ‘clearing-house’ of resources, research, and initiatives on punitive laws and policies impacting people living with HIV.

Jessica Whitbread: And ICW are really, really excited to be here and part of this. Criminalisation is a huge issue for us. Over 50% of people living with HIV are women and many of these laws initially and still continue to be created as a way to protect women when actually they put us more at risk.

Getting the criminal law changed and out of the HIV response

The meeting began with a surprise announcement by the Minister of Health for Victoria, David Davis, about Australia’s only HIV-specific criminal law, Section 19A of the Victorian Crimes Act. Read more about the campaign to reform the law here.

David Davis: And as a further step in our efforts to reduce the impact of HIV and reduce stigma and discrimination, the coalition government will amend section 19A of the Crimes Act 1958 to ensure that it is non-discriminatory.

Following the announcement Victoria’s Shadow Health Minister, Gavin Jennings, committed to removing (and not just amending) Section 19A within the next 12 months, should Labor win the state election in November.

A keynote address by the Honourable Michael Kirby, a former Justice of the High Court of Australia, and a member of the Global Commission on HIV and the Law, reminded us why an overly broad criminal justice apporach to prevention does more harm than good.

Michael Kirby: In the big picture of this great world epidemic, the criminal law has a trivial role to play. What is most important is getting the law changed and out, not getting the law into the struggle against HIV and AIDS.

The Iowa example: laws are subject to change and should be subject to change

The meeting then focused on Iowa in the United States where both law reform and judicial rulings have limited the overly broad use of the criminal law.

Matt McCoy: You know, in Iowa, we had a very bad law on the books, but it’s not unlike a lot of other places in the country in the United States and in the world. So there was no need for transmission, and with it, the penalty was so extreme, a mandatory lifetime sex offender registry and 25 years in prison.

Watch the video that Senator McCoy showed at the meeting explaning how law reform in Iowa happened.

Sean Strub: Iowa is a conservative farm-belt state. And the effort there began with a small group of people with HIV who started organising others with HIV and educating their own communities and then educating public health officials and reframing the issue in terms of a public health issue rather than simply an issue of justice for people with HIV. Last month, we held a conference at Grinnell College in Grinnell, Iowa. It was the first national conference on HIV criminalisation in the US. The Friday before our conference began, Governor Branstad in Iowa signed a criminalisation reform measure and made Iowa the first state in the United States to subtantively reform and modernise their statute.

Two videos of the HIV Is Not A Crime conference (also known as the Grinnell Gathering) are available. One shows the opening ceremony and can be viewed on the Sero website. A second video highlights the voices of US HIV criminalisation survivors featured at the meeting, and can be viewed on the Sero website.

Nick Rhoades: About a week after the conference was over, the timing was just a little bit off, nonetheless, it’s fantastic. My conviction was overturned by the Iowa Supreme Court. Yeah. Thank you… It’s kinda groundbreaking, their decision, and I, first of all, think that it’s going to have an effect beyond Iowa’s borders, but it basically said that there has to be more than a theoretical chance of transmission to be prosecuted under the law. And previously, that’s not been the case. Basically, it was just if you didn’t disclose, and you had sex, that that would be enough to convict someone. So, for the first time, they basically said that factors such as using protection, being on antiretroviral medication, having an undetectable viral load specifically, should affect whether or not prosecution is able to happen.

Senator McCoy took the opportunity to urge parliamentarians to rethink how they treat HIV in a criminal context.

Matt McCoy: Many of these laws went into effect in the United States during the AIDS crisis and the scares that society had around the issue, and in many cases they were put into effect using a one-size-fits-all measure. And so this is a great opportunity to go back and to revisit that and to realise that our laws are subject to change and should be subject to change.

Science can change laws and limit prosecutions

A number of countries in Europe have also recently revisited their criminal laws, policies or practices. A poster, Developments in criminal law following increased knowledge and awareness of the additional prevention benefit of antiretroviral therapy, presented at AIDS 2014 by the HIV Justice Network, showed where and how this has taken place.

Edwin Bernard: We have to salute the Netherlands, the very first place in the world that actually, way before the Swiss statement, between 2004 and 2007, managed to change the application of the law through a variety of Supreme Court rulings, but also because of advocacy that happened with advocates and healthcare workers and people in the community who limited the role of the criminal law to only intentional exposure or transmission. Denmark was the only country in Western Europe that had an HIV-specific criminal law, and a huge amount of advocacy went on behind the scenes and that law was suspended in 2011 based on the fact that the law was about a serious, life-threatening illness, and the reality was that in Denmark, people living with HIV have exactly the same life expectancy as people without HIV. And so the law just couldn’t apply anymore. And so, we hope that the places like Denmark and the Netherlands will provide inspiration for the rest of us.

Urgent need to focus on global South

But with two-thirds of all HIV-specific criminal laws enacted in the global South, there is now an urgent need to re-focus our efforts.

Patrick Eba: For a long time, we have been saying that there is no prosecution happening in the Global South, particularly in Africa, because we were lacking the information to be able to point to those instances of criminalisation. In fact, there is a lot of prosecution that is happening, and in the past year, if you look at the data that is being maintained by the HIV Justice Network, it is clear. We’ve seen the case in Uganda. We know of a decision that came out some time late last year in South Africa. We know of a number of cases in Kenya, in Gabon, in Cameroon [and especially in Zimbabwe]; and these really show that where we celebrate and are able today to know what is happening in the Global North, our lack of understanding of the situation in the Global South is one that requires more attention.

Dora Musinguzi: Uganda is right now grappling with lots of human rights and legal issues, and it’s going to be such a high climb to really convince our governments, our people, government agencies to make sure that we really have this reform of looking at HIV from a human rights angle, public [health] angle, gender justice angle, if we are going to achieve the gains that we have known to achieve as a country. …But we stand strong in this, we are not giving up. We are looking to a future where we shall challenge this criminalisation, and we hope to come back with a positive story.

Workshops on advocacy messages, science and alternatives to a punitive criminal justice approach

After the morning plenary sessions, participants then attended one of three workshops. The first workshop explored how to get advocacy messages right, in terms of what arguments need to be delivered by whom and to whom.

Laurel Sprague: We talked about the importance of stories. In particular, the stories of people who have been prosecuted, both because of the dignity it gives them to be able to share their own experience, and also because what we’re seeing is so broadly understood to be disproportionate once the details come out.

Laurel’s rapporteur notes can be downloaded in full here. For an example of advocacy messagaging aimed at communities impacted by HIV see this video from Queensland Positive People.

A second workshop highlighted the way that up-to-date science on HIV-related risks has limited the application of the criminal law in Sweden and Canada.

David Mejia-Canales: Really mobilising their scientists, their researchers and really connecting with the lawyers, the judiciary, the prosecutors and putting to them the best evidence that they have.

Download the Powerpoint presentation given by Cecile Kazatchine of the Canadian HIV/AIDS Legal Network here.

The third workshop examined alternatives to a punitive criminal justice system approach, and the risks and benefits of using, for example, public health law or restorative justice.

Daniel Reeders: So if someone shows up at a police station or talks to their doctor about being exposed or infected with HIV, a restorative justice approach would talk about giving them an opportunity to work that issue through with the person who they are otherwise trying to report, either for criminal prosecution or public health management. It acknowledges that people experience HIV infection as an injury and that there is a lack of a process offering them an opportunity to heal.

Daniel’s entire rapporteur report can be read on his blog.

Going home with more ideas and tools and inspiration to continue our work

As the meeting came to a close participants appreciated the day as a rare and much needed opportunity to discuss advocacy strategies.

Paul Kidd: What a day! It is just so amazing to be in this room with all of these incredible people and the sense you have of how much passion and energy and commitment there is around this issue.

Richard Elliott: Even as we face numerous setbacks in our own context sometimes, we see that in fact people are making breakthroughs elsewhere and then that helps us put pressure domestically on decision makers, on legislators, on judges.

Michaela Clayton: It’s important to learn from how people have achieved successes and what have been peoples’ problems in achieving successes in different countries in addressing criminalisation. So for us it’s a wonderful opportunity to learn from others.

Dora Musinguzi: I was encouraged to know that the struggle is not only for us in Africa, in Uganda, and I was also encouraged to know that our colleagues have made progress, and so we can.

Sean Strub: I think everywhere that there is an effort for this advocacy for reform, it is a constantly evolving effort. And the fact that the HIV Justice Network and others brought together this global community which is incredibly mutually supportive. I think of any aspect of the epidemic, I can’t think of an area where there is more collegiality and mutual respect than those of us who’ve centered our work around criminalisation reform. That’s what we’re seeing here in Melbourne, just an expansion of that, and all of us going home with more ideas and tools and inspiration to continue our work.

To remain connected with the global advocacy movement against overly broad HIV criminalisation, like us on Facebook, follow us on Twitter and sign the Oslo Declaration on HIV Criminalisation to join our mailing list.