Dee Borrego is a 30-year-old woman, who since being diagnosed with HIV at the age of 20 has been on the forefront national HIV/AIDS activism. For Visual AIDS, Borrego has written an essay in which she talks about the anger and frustration she had towards her ex upon learning about her status, and how she has come to learn that HIV Criminalization is wrong for everyone – especially people living with HIV. The essay is part of the Visual AIDS Play Smart program, an honest and straightforward approach to promote dialogue and action around harm reduction, HIV testing, PEP & PrEP, and other contemporary issues such as HIV Criminalization and No Condoms as Evidence. To learn more: Play Smart
US: Will Donald Bogardus be the last person to be convicted under Iowa’s overly draconian HIV-specific law?
Earlier this month, Donald Bogardus, 42, was given the lightest-ever sentence for HIV non-disclosure in Iowa. He had faced up to 25 years in prison but was given a suspended sentence with two to five years of probation. However, he will also have to register as a sex offender and will likely lose his job as a certified nursing assistant as a result.
Watch Donald tell his story to the SERO Project.
Donald, who was diagnosed in 2007, was arrested in 2009 for having consensual unprotected sex three times with a male partner (who remained HIV-negative) without disclosing that he was HIV positive.
He was charged under Iowa Code § 709C.1, which states: “a person commits criminal transmission of [HIV] if the person, knowing that the person’s [HIV] status is positive … [e]ngages in intimate contact with another person.” The statute defines “intimate contact” as “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of [HIV].”
As recently as July 2013, the Eighth Circuit Court of Appeals ruled that Iowa’s HIV law was not unconstitutionally vague and upheld the conviction of Adam Musser, who was sentenced to 50 years for not disclosing his HIV-positive status to four women.
Donald was supported through this ordeal by fellow criminalisation survivor, Nick Rhoades, who used a condom, had an undetectable viral load and did not transmit HIV but was sentenced to 25 years by an Iowa court for not disclosing his HIV-positive status to his male partner. Later reduced to a year served, he now must register as a sex offender for the rest of his life.
(Nick’s story has been covered sympathetically by mainstream news outlets, including CNN, and formed the basis of a major ProPublica investigation, published last December 1st.)
Last September, the Iowa Court of Appeals upheld Nick’s conviction, finding that because he did not use a condom during oral sex there was stll a chance of transmission.
However, Rhoades and his attorneys at Lambda Legal will have another opportunity to argue that the charge and conviction is not based on current science, and the case will soon be heard at the Iowa Supreme Court.
These three cases are the tip of the iceberg, however. There are only 2000 people living with diagnosed HIV in Iowa and yet
Between January 1999 and June 2011, 25 people were charged and 15 were convicted. In 2012, Iowans were paying for the prison sentences of eight Iowans because of this law.
This quote comes from one of two editorials published this week in Iowa newspapers that are supporting a change in the law. The Des Moines Register‘s editorial, entitled ‘Lawmakers should correct Iowa’s HIV mistake‘ begins
During an election year, Iowa lawmakers are reluctant to do anything that could be construed as remotely controversial. it should not be controversial for them to fix a mistake they made 15 years ago that is ruining the lives of innocent Iowans. Lawmakers and Gov. Terry Branstad should repeal a statute that criminalizes the actions of Iowans who are HIV-positive when they have harmed no one.
Meanwhile the Press-Citizen argues that there is ‘Still time to fix Iowa’s HIV law this session’. It covers both Nick’s appeal and the law reform process.
We can only hope the Iowa Supreme Court will be more inclined than the lower court to take new scientific evidence into consideration and move away from past rulings. But whatever the state Supreme Court decides, it’s time for state lawmakers to fix the law. At the very least, lawmakers need to clarify that both intention to transmit and actual transmission is needed for prosecution. They also should specify that the type of sex act, condom usage and the defendant’s viral load need to be taken into account for decisions on prosecution and sentencing. At best, they could repeal the misguided law completely.
These editorials are the result of extremely hard work undertaken by a broad coalition of local and national advocates, and were timed to coincide with yesterday’s “Day on the Hill” when HIV advocates in Iowa visited the Capitol in Des Moines to talk with State legislators about modernising Iowa’s HIV specific legislation.
According to Tami Haught, of CHAIN (the Community HIV/Hepatitis Advocates of Iowa Network) they were able to speak with half of all state Representatives and nearly two thirds of all Iowa Senators. This may create the final push for law reform this legislative session (which ends in April).
Immediately following Donald Bogardus’ sentencing, according to the Waterloo Cedar Falls Courier
Sen. Steve Sodders, a Democrat from State Center, proposed changes to “modernize the draconian law.” The bill has been referred to the Senate Judiciary Committee, causing a ripple of Capitol support. “It’s important that we decriminalize some of the effects of this old law. It’s just outdated, and we have to keep up with modern medicine,” Sodders said.
Sen. Charles Schneider, a Republican from West Des Moines and ranking member on that committee, said GOP members in both chambers agree there should be changes to the law. “What I think we need to do is just educate people that the current penalty is more punitive than it needs to be for people who are treating effectively the transmittable disease that they have,” he said.
Attorney General Tom Miller, who supported changes to the law last year, reaffirmed his support this session. Miller said he’s “firmly convinced the statute needs to be changed” and that his office is working with lawmakers to update the statute.
This is a summary what they are proposing.
The proposed Contagious or Infectious Disease Transmission Act would try people who transmit diseases like HIV, Hepatitis C and tuberculosis under the same statute.
It aims to delineate between someone with a criminal intent to infect and simply failing to disclose their status, taking into account whether an infected person used protection or is taking medications to limit the risk of transmission.
Under the new law, a person does not act with criminal intent necessary for a conviction simply by knowing their status and having sex.
Offenders who knew their status would get up to 10 years incarceration — a class C felony — for intentionally transmitting a disease. If they didn’t infect their partner, the sentence would drop to a class D felony or 5 years in prison.
If a person who knew their status and didn’t intend to infect their partner, but acted with a reckless disregard for their health, the violation becomes an aggravated misdemeanor.
The bill eliminates the requirement to register as a sex offender.
With a groundswell of support for modernisation, it seems very likely that Iowa will soon become the first state in the United States to achieve HIV criminalisation law reform.
Uganda: ‘Trial by media’ of nurse accused of exposing a child to HIV via injection sets a ‘dangerous precedent’
The ongoing case of Rosemary Namubiru, the Ugandan nurse accused of exposing a child to HIV during the course of administering an injection, is highlighted in a powerful press release issued yesterday by AIDS Free World. Fortunately, Ms Namubiru is being supported by several advocacy and human rights organisations as well as by individual HIV advocates in Uganda.
The inflammatory media coverage (an example of which is this horribly invasive TV news story, above) not only increased HIV-related stigma and violated Ms Namubiru’s right to a fair trial, but is also being used to help justify the passing of the draft HIV Prevention and AIDS Control Bill 2010 which includes a number of problematic provisions including mandatory HIV tests for pregnant women and their partners, and forced disclosure of HIV status to a newly diagnosed person’s partner by a medical practitioner. In addition, the Bill contains two overly broad and problematic HIV-specific criminal statutes.
In late 2009, a group of more than 50 Ugandan and international organisations and individuals released a report criticising many of the provisions of an earlier draft. That early advocacy resulted in the removal of a criminal penalty for the transmission of HIV from mother to child through breastfeeding.
Advocacy co-ordinated by the Uganda Network on Law, Ethics and HIV/AIDS (UGANET), continues to argue that the unfavourable clauses must be completely removed and that Uganda must assent to the East African Community (EAC) HIV & AIDS Prevention and Management Act which contains provisions meant to supersede Ugandan law.
Read the entire press release below and download the PDF version here.
HIV-Positive Nurse Tried by Media
––Uganda’s first court case dealing with criminalization of HIV transmission could have far-reaching consequences––
February 11, 2014 (Kampala, Uganda)––Rosemary Namubiru, a Ugandan nurse, stands accused of exposing a child to HIV during the course of administering an injection. The incident incited a media firestorm, leading to Namubiru’s arrest and trumped-up charges of attempted murder. That these were baseless charges was confirmed at the opening of the trial today when the charge was changed to criminal negligence; charges that could still carry up to seven years in prison. As the trial begins, it is clear that the damage has already been done. Namubiru was tried and convicted in the public eye by the media, violating her rights and presumption of innocence.
The implications of this case are far-reaching: the Namubiru case appears to be the first in Uganda’s courts dealing directly with HIV exposure and transmission. Efforts to criminalize HIV transmission, and the failure of both the media and the prosecutors office to act responsibly, set a dangerous precedent and could have grave consequences for the fundamental rights of people living with HIV and AIDS in Uganda and beyond.
Case Summary
Rosemary Namubiru, 64, a nurse with 35 years of experience, was working at the Victoria Medical Centre in Kampala, Uganda. On January 7, 2014, Namubiru was attempting to give an injection to an ill 2-year-old patient. Neither she nor the mother could calm the distraught child. With the child writhing and kicking, the needle accidentally pricked Namubiru’s finger; she stopped what she was doing, washed and bandaged her pricked finger, and returned to the child. She was eventually able to administer the injection.
Uncertain about whether the same needle was used throughout, the mother became concerned about the possibility that her child had been exposed to HIV. It was confirmed that Namubiru is HIV-positive and is on anti-retroviral drugs. The child was given an HIV test; the results were negative. A precautionary 2-month post-exposure prophylaxis regimen was initiated, after which the child will be re-tested.
Rosemary Namubiru was arrested in front of a bevy of journalists. She was held by the Criminal Investigations Department for four days before her first appearance in court. She was charged with attempted murder, which carries a sentence of up to life imprisonment, and remanded to Luzira National Prison to await trial. On February 7, 2014, she was denied bail and returned to prison to await trial. Minutes before the trail began on February 11, 2014, the prosecutor announced the charge would be changed to “negligent act likely to spread infection of disease.” With this new charge in place, the prosecutor began to call its witnesses, and the trial is ongoing.
Trial by media
Since the moment of her arrest, Rosemary Namubiru has been found guilty in the court of public opinion. Even though research has shown that the likelihood of HIV transmission from a needle puncture is miniscule––only 0.32% of those exposed to HIV through a subcutaneous puncture became infected––Namubiru has been singled out and vilified in the press because of her HIV-positive status.
Here are just a few of the libelous accusations that appeared in the media reports in the immediate aftermath of her arrest:
* An article with the headline “Killer nurse charged with attempted murder” went on to accuse Namubiru of “maliciously infecting her patients, mainly the children with her HIV positive blood.”
* Another claimed that she “drew her own HIV-infected blood and injected it into a two-year old child.”
* Shortly after Namubiru’s arrest, one article stated that police were “investigating allegations that the woman has been engaging in the act for a pretty long time.”
* An article that appeared in The Africa Report speculated about Namubiru’s mental state, calling her “the fiendish nurse” and claiming “the baby’s incessant cries drove her mad.”
* One journalist opined that “as police struggled to find an appropriate charge to punish such an evil act, it became clearer that our laws are inadequate to cover such emerging but deadly crimes.”
* An editorial about the case declared, “The majority of our doctors and nurses may well be great professionals, but it’s also true that among them are many people who do not harbour good intentions for one reason or another. These could be inherently evil-minded, bitter or mentally unstable.”
False and sensational accounts by irresponsible media can prejudice the outcomes of trials and violate the fundamental human rights of people living with HIV and AIDS. Section 28 of Uganda’s constitution guarantees that every person charged with a criminal offence shall “be presumed to be innocent until proved guilty.”
A miscarriage of justice
Even before the trial began, serious questions surfaced regarding Rosemary Namubiru’s ability to receive a fair hearing. From the spectacle of her arrest—recorded by media who were clearly alerted in advance–-to the baseless original charge of attempted murder, and the rush to trial before the defense could prepare, it is clear that this is a sensationalized case.
Throughout the process, there have been numerous violations of Rosemary Namubiru’s rights:
* According to Section 23(4)(b) of the Ugandan constitution, an accused person can only be held for up to 48 hours before a hearing. Namubiru was held for four days before her first court appearance.
* The prosecution argued against granting bail, stating that Namubiru poses a grave risk to the public, even though there is no evidence of intent to commit any crime.
* Namubiru had no lawyer present when police extracted a statement from her; she was unable to access legal counsel until she had been in detention for a week.
* The Prosecutor claimed on February 7, 2014 that the State had completed its investigation and was ready to proceed to trial. Namubiru’s lawyers had not yet seen the State’s evidence, and were informed that they would receive the file the day before the trial was slated to begin. Section 28 of Uganda’s constitution guarantees that every person charged with a criminal offence shall “be given adequate time and facilities for the preparation of his or her defence.”
What are the broader implications of this case?
HIV advocates fear that the Namubiru case could set a dangerous precedent, in terms of both the criminalization of HIV transmission and the treatment of people living with HIV and AIDS.
Many advocates worry that the case could be used to justify passing the proposed HIV Prevention and AIDS Control Bill 2010. The bill includes two overly-broad sections on the criminalization of HIV, as well as a number of other troubling provisions that would restrict the rights of persons living with HIV and AIDS. If the government moves to legislate the criminalization of HIV, specific groups—including pregnant women, who are easily identified within the chain of transmission—could be targeted for criminal charges. (For more on the proposed bill and its implications, please visit www.uganet.org).
AIDS-Free World unequivocally disagrees with the notion of having a separate criminal code for people who are HIV-positive. If a person attempts to do bodily harm to another, regardless of the means, the existing laws should apply. By creating laws that specifically criminalize HIV transmission, the courts place the emphasis on the person, rather than the crime.
The media frenzy created by this case illustrates the degree to which HIV stigma still exists. Many advocates warn that the introduction of HIV-specific laws would be a dramatic setback in efforts to eliminate discrimination, particularly in the workplace.
Expert global guidance on the criminalization of HIV transmission
In its landmark report, the Global Commission on HIV and the Law recommended that:
“To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:
2.1. Countries must not enact laws that explicitly criminalise HIV…exposure. Where such laws exist, they are counterproductive and must be repealed.
2.2. Law enforcement authorities must not prosecute people in cases of HIV…exposure where no intentional or malicious HIV transmission has been proven to take place.
2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.
—–
Rosemary Namubiru is being supported by several advocacy and human rights organizations, including the International Community of Women Living with HIV, Eastern Africa (ICWEA), Uganda Network on Law, Ethics and HIV/AIDS (UGANET), The National Forum of People Living with HIV in Uganda and AIDS-Free World (NAFOPHANU), and by individual HIV advocates including Canon Gideon Byamugisha, Milly Katana, Major Rubaramira Ruranga.
Switzerland: New handbook for parliamentarians on effective HIV laws includes case study and interview with Green MP Alec von Graffenried
A new publication from the Inter-Parliamentary Union (IPU) and United Nations Development Programme (UNDP), written by Veronica Oakeshott, is an excellent new resource to help inform advocacy efforts to remove punitive laws and policies that impede the HIV response.
Aimed at parliamentarians, ‘Effective Laws to End HIV and AIDS: Next Steps for Parliaments’ (aussi disponible en français) is a practical handbook showing which types of laws are helpful and unhelpful in the HIV response, and provides examples of legislation from around the world that have been effective in limiting new HIV infections.
It also includes case studies and interviews with some of the parliamentarians involved in law reform, most notably with Swiss MP Alec Von Graffenried whose last minute amendment resulted in the new Law on Epidemics containing a clause that only criminalised intentional disease transmission.
Other case studies highlighted in the handbook include: decriminalisation of sex work in New Zealand; decriminalisation of personal drug use in Portugal; ending discrimination against people living with HIV in Mongolia: and legal recognition for transgender and intersex people in South Africa.
The Swiss Law on Epidemics was finally passed, following a national referendum, in September 2013. However, it won’t come into effect until January 2016.
Below is the section explaining how and why the Swiss law reform process took place. It’s an excellent example of how advocates saw an opportunity to work with clinicians, scientists and key parliamentarians in order to make a difference. It also shows that the law reform process can be a slow and complex undertaking. Patience here is definitely a virtue.
Switzerland: Decriminalisation of unintentional HIV transmission and exposure
Name of act
The Epidemics Act 2013
Summary
Repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).
Why the law is important for HIV
Criminalization of HIV transmission, exposure or non-disclosure creates a disincentive for testing and gives non-infected individuals false confidence that they will be informed of any infection. In reality, their partner may not even know his or her HIV status and everyone should be responsible for protecting their own sexual health. The latest scientific findings have shown that people on HIV treatment who have an undetectable viral load and no other sexually transmitted infections are not infectious. Such people may want to have consensual unprotected sex. Criminalizing them for doing so has no positive public health impact and is an intrusion into their private life. UNAIDS is calling for the repeal of all laws that criminalize non-intentional HIV transmission, non-disclosure or exposure.
How and why was decriminalization of HIV transmission and exposure introduced in parliament?
In 2007, the Swiss Government decided to revise the Swiss law on epidemics. This was not an HIV-specific law and the decision to review it was not HIV-related but due to concerns that Switzerland was not well-placed to deal with other global epidemics, such as severe acute respiration syndrome (SARS) and H1N1. However, HIV campaigners and persons working in public health saw an opportunity to insert a clause into the Act that would amend Switzerland’s current Penal Code, Article 231 of which has been used to prosecute people living with HIV for transmission and exposure. Since 1989, there have been 39 prosecutions and 26 convictions under Article 231 in combination with the Swiss law on “grievous bodily harm”.
In December 2007, the government began a consultation on a draft Epidemics Bill and campaigners proposed a clause in it amending Article 231 of the Penal Code. In 2010, the government introduced the draft Bill into parliament. However, HIV campaigners were not happy with the new Bill as tabled and campaigned for changes throughout its passage through parliament. Improvements to the Bill were made at the Committee stage but it was not until the final vote at the National Council in 2013 that a last-minute amendment was tabled by Green MP Alec von Graffenried, which achieved campaigners’ core aim of decriminalizing unintentional transmission or exposure.
Was cross-party support secured and, if so, how? How was a majority vote secured?
The last-minute amendment was tabled and passed with 116 votes to 40. The key arguments made in favour of the amendment centred on the unsuitability of public health law to deal with private criminal matters. This rather theoretical argument appealed to legislators, many of whom are practising lawyers or have a legal background. However, the wider case for decriminalization had been made to parliamentarians over a period of many years inside and outside parliament and was reinforced by new sci- entific announcements and court decisions. MPs across the political divide realized that HIV is no longer a death sentence, but a manageable condition and that the right treatment can reduce an individual’s infectiousness to zero. In this context, MPs were more open to the idea of legal change.
During the campaigning period of many years, different arguments were made to appeal to different MPs across the political spectrum. Those on the right often responded best to the notion of an individual’s responsibility to protect their own sexual health and those on the left responded better to public health arguments. Efforts were also made to lobby the head of health departments at the regional level, who were then able to communicate their support for the change to colleagues at the national level.
How long did it take to pass the law?
It took almost six years from the consultation on the first draft of the Bill until it was confirmed by referendum in September 2013. The law will come into effect in January 2016.
Read and/or download the entire publication below.
Effective Laws to End HIV and AIDS: Next Steps for Parliaments. Inter-Parliamentary Union, 2013
Research agenda into the public health impact of overly broad HIV criminalisation highlights five areas where researchers and advocates can collaborate
A newly published report suggests a number of concrete ways that research into the impact of overly broad HIV criminalisation on public health can move the policy agenda forward, and help reform laws and create better policies for people living with HIV and most affected communities.
The report is the result of an international workshop on HIV Prevention and the Criminal Law held in Toronto, Canada on April 27th and 28th 2013 that also led to the creation of the HIV Justice Network’s video documentary, More Harm Than Good.
The workshop’s aim was to support, encourage and further develop emerging research on the public health implications of criminalising HIV non-disclosure, exposure and transmission. It was the first international meeting focused exclusively on sharing, critiquing and strengthening new empirical research on this topic.
The report explores three key themes that arose over the course of workshop discussions – (1) the relationship between research and advocacy; 2) the implications of HIV-related criminalisation for public health practice; and (3) the potential and limits of public health research for criminal law reform – and offers suggestions for new directions for future research on the public health implications of criminalizing HIV non-disclosure, exposure and transmission.
Workshop discussions emphasised that research on the public health implications of HIV-related criminalisation is able to do the following:
- Identify the impacts of HIV-related criminalisation on HIV prevention, care, treatment and support. Research into such impacts is especially important in light of new approaches that respond to the HIV epidemic by increasing the uptake of HIV testing and counselling, linking HIV-positive people to health and social services, initiating HIV antiretroviral therapy as early as possible, and retaining people living with HIV/AIDS in medical care.
- Elucidate the influence of criminalising HIV non-disclosure, exposure and transmission on the attitudes, opinions, beliefs and activities of people living with HIV/AIDS, people and communities at risk, service providers in public health and clinical settings and staff in ASOs and community-based organisations.
- Inform efforts to respond to the potential discriminatory enforcement of criminal laws by identifying the demographic patterns associated with HIV-related criminal prosecutions.
- Provide public health authorities with evidence required to become more engaged in the issue, to develop policy and programmes, and to comment publicly on an increasingly important facet of the HIV epidemic.
- Identify legal, ethical and practice issues faced by public health and clinical staff as a result of HIV criminalisation, and provide evidence to support legally and ethically sound policy and practice.
- Assess the efficacy and costs and benefits of different policy options to address HIV transmission.
- Inform decisions by legislators, criminal prosecutors and courts in a number of jurisdictions.
The meeting identified five main suggestions for moving the research field forward.
1. Explore novel analytical and methodological approaches
Given the complexity of HIV criminalisation, applied and theoretical research agendas should be structured broadly, inquire into a wide range of possible “implications” and account for the intersectionality of factors such as race, class, migration, colonisation and gender. New research would benefit from a deeper engagement with socio-legal studies and criminology.
Further suggestions:
- Ground research questions in a health and human rights or an intersectional/anti-oppression framework as alternatives to a public health implications framework.
- Critically engage with mainstream feminist analysis that supports HIV criminalisation.
- Use qualitative approaches, including narrative analysis, ethnographic methods and participatory action research to:
- Capture issues of importance to, and respond to the needs of, communities of people living with and at risk of HIV;
- Document and explore experiences of people who have been criminally charged and/or prosecuted as well as those who have brought forward police complaints;
- Explore HIV criminalisation as a complex, constructed and varied social phenomenon.
2. Conduct intervention research
Research on the public health implications of criminalising HIV non-disclosure would be enhanced by studies exploring the processes and outcomes of interventions that offer alternatives to criminalisation and/or that seek to prevent HIV transmission.
Further suggestions:
- Conduct research on and explore the implications of using restorative justice approaches for criminal offences related to HIV non-disclosure, exposure and transmission.
- Evaluate the impact of new or existing case management strategies that focus on sexual activities that risk incarceration and HIV transmission:
- Explore collaborations with HIV/AIDS Service Organisations (ASOs) and other community-based organisations as sites for intervention research. ASOs offer a less coercive and more supportive environment to address challenges of concern to the public health and the criminal justice systems;
- Conduct ethnographic research on the “Calgary Model.” (See ‘A framework to consider for the non-disclosure of HIV/AIDS – the Calgary Health Region model’ halfway down this page) The Calgary Model is a policy-informed public health case management model that has been endorsed by policy makers in Canada, yet has not been empirically studied.
3. Conduct research on factors that underpin and drive HIV criminal prosecutions
Research on the criminalisation of HIV non-disclosure, exposure and transmission has yet to rigorously explore the various factors that encourage criminal prosecutions. There has been very little research involving people who initiate criminal complaints, their motivations
for doing so, their relationships with people living with HIV/AIDS and their experience of the criminal justice system. Relatedly, we know very little about police and prosecutors, their understandings of laws related to HIV non-disclosure, exposure and transmission, their knowledge of HIV and HIV transmission, and their attitudes towards people living with HIV/AIDS. There is a strong need for research that explores the underlying social, structural, behavioural and cultural factors that drive HIV-related criminalisation.
Further suggestions:
- Prioritize police, prosecutors and complainants in new research.
- Conduct research on the moral and other discourses that underpin criminalization and that inform the perspectives of the general population, those living with and at risk of HIV, legislators and policy makers and those who work in the criminal justice and public health systems.
Potential research foci include:
- norms of sexual practice in communities as contrasted with principles of “good behaviour” applied by courts;
- lessons from harm reduction and drug policy reformists who have had some success in working with police in opposing drug prohibition and the “war on drugs”;
- critical analysis of how the “good versus bad” person living with HIV/AIDS is discursively constructed in media and elsewhere;
- how issues of “personal responsibility” and “wrong” conduct get constructed, expressed and enacted, and to what end;
- redesigning existing quantitative surveys to more robustly inquire into the attitudes, opinions and beliefs of respondents;
- a moral mapping and deconstruction of pro-criminalisation arguments.
4. Continue to research the implications of criminalization for those who work in HIV prevention and in clinical and support services for people living with HIV/AIDS
Additional research on how criminalisation affects the work of various practitioners engaged in HIV prevention and the treatment, care and support of people living with HIV/AIDS can further our understanding of the broad implications of criminalizing processes. Comparative studies across national jurisdictions would yield important results.
Further suggestions:
- Build on existing studies by incorporating mixed methodologies into research designs:
- Investigate innovative and more rigorous approaches to sampling than has been the case in existing studies.
- Explore how changes in front-line practice related to criminalisation may be connected with broader policy and program changes.
- Investigate the discursive and other bases of public health response (e.g. explore the origins and impact of “unwilling and unable” terminology in Canadian public health policy).
5. Conduct media research
The mass media are an important source of public information about the criminalisation of HIV non-disclosure, exposure and transmission. While we have many accounts of how the media coverage of HIV criminal cases contributes to HIV-related stigma, we have little published research that draws on rigorous sampling methods to explore this question.
Further suggestions:
- Conduct research to understand the impact of media coverage on communities and people living with and affected by HIV, the general public and legal and policy decision makers.
- Inquire into the association between media coverage and stigma especially in relation to African, Caribbean and Black communities.
- Systematically analyze the narrative and rhetorical conventions used by mainstream media when reporting on and editorialising about HIV criminal cases.
- Investigate the use of media by police as an investigative tool.
This article is only a summary of the highlights of the report, and the entire meeting report is well worth reading.
The Criminalization of HIV Transmission and Exposure Working Group from Yale University’s Center for Interdisciplinary Research on AIDS (CIRA) have also published a research agenda focused primarily on the the research needs of advocates in the United States. This was based on a meeting held in November 2011 and authored by some of the same participants that attended the Toronto workshop, including Carol L. Galletly, Zita Lazzarini and Eric Mykhalovskiy.
This meeting concluded that the research agenda should include studies of:
(1) the impact of US HIV exposure laws on public health systems and practices;(2) enforcement of these laws, including arrests, prosecutions, convictions, and sentencing; (3) alternatives to HIV exposure laws; and (4) direct and opportunity costs of enforcement.
You can read the full research agenda, originally published in the American Journal of Public Health in August 2013, below.
Criminalization of HIV Transmission and Exposure – Research and Policy Agenda (August 2013)
Three new publications from Global Commission on HIV and the Law help advocacy to move forward
In support of efforts by UNDP, UNAIDS and other UN agencies, governments and civil society to take forward the Commission’s recommendations, and learning lessons countries who have undertaken follow up activities including national dialogues, legal review and legal environment assessments, UNDP’s HIV, Health and Development Group is pleased to launch the following knowledge products:
The summary of an e-discussion “The Global Commission on HIV and the Law – Taking the Commission’s Recommendations Forward” held in June and July 2013, organized by UNDP’s HIV, Health and Development Group in collaboration with the Democratic Governance Group and the Gender Team, aimed to analyze experiences in implementing the Commission’s recommendations a year after the launch of the Commission’s Report, while identifying challenges, good practices and lessons learned in addressing human rights and legal frameworks in the context of HIV.
Link: http://on.undp.org/sZN9R
A Practical Guidance entitled: Legal environment assessment for HIV: An operational guide to conducting national legal, regulatory and policy assessments for HIV”. The manual on Legal Environment Assessment for HIV provides UN practitioners and Joint UN teams on AIDS as well as national governments, civil society, development partners and legal experts or advisers with guidance on how to support national efforts on reviewing laws, policies and practices pertaining to HIV. It can also be used to inform the development and oversight of HIV programmes supported by the Global Fund. The manual offers step-by-step guidance on how to undertake a national Legal Environment Assessment, with concrete case studies, tools and resources. It is intended to assist governments, civil society and other key stakeholders to develop evidence-informed policy and strategy, to review and reform laws and policies based on human rights considerations and support increased capacity to achieve enabling legal environments for effective HIV responses.
Link: http://on.undp.org/sZNzR
A practical manual entitled National Dialogues on HIV and the Law for use by UNDP regional HIV teams and country offices on the organising of national dialogues pertaining to HIV and the law. National dialogues present an opportunity to determine how the law can advance health and human rights. National Dialogues can provide an opening for frank, constructive multi-stakeholder exchanges on sensitive issues. To date, a number of these dialogues have created a unique platform from which to raise contentious issues regarding the role of the law in the AIDS response. They have also facilitated a dialogue between those who develop, interpret and enforce laws on the one hand, and those who experience their impact on the other. In addition, key stakeholders involved in National Dialogues can become vital agents who help to create legal environments that support effective HIV responses. This manual is intended to assist UNDP managers and programme staff to support governments and civil society actors to organize a National Dialogue resulting in concrete action planning for strengthening the legal and social environment. This manual can also help the Country Dialogues being undertaken to inform the development of HIV concept notes and proposals for the Global Fund to Fight AIDS, Tuberculosis and Malaria. It provides case studies, tools and resources to guide the national process. It draws on experiences and lessons learned from the Global Commission on HIV and the Law as well as from a number of countries who have already convened a National Dialogue.
Link: http://on.undp.org/sZNPJ
Global Commission on HIV and the Law Jan 2014 newsletter highlights important legal and policy developments as well as new resources
We are pleased to share this first Newsletter Issue of 2014 containing several important developments. Perhaps most significantly, there have been a number of controversial recent anti-LGBT rulings and legislation around the world. In the same week in December, both Nigeria and Uganda adopted harsh new anti-LGBT related laws, which no doubt will have repercussions on the HIV response in those countries. Also, in December in response to the Supreme Court of India’s overruling of an earlier lower court decision to strike down an anti-sodomy law, effectively recriminalizing same sex behavior, former Commissioners of the Global Commission on HIV and the Law jointly issued a statement expressing dismay at the decision of the country’s top court. On a more positive note, in October Uzbekistan lifted all restrictions on entry, stay and residence for people living with HIV – see this UNAIDS infographic on current travel restrictions for PLHIV.
Several national and local level dialogues on HIV, human rights and the law were held in recent months, including in Brazil (November), China (December), Democratic Republic of Congo (November), and Dominican Republic (June). On 28-31 October, the first Eastern and Southern Africa Regional Judicial Dialogue on HIV and the Law was held in Nairobi. Also in October, UNDP and UNAIDS organized an information session on access to affordable medicines in Nay Pyi Taw, Myanmar, attended by more than 30 parliamentarians. Visit our recently updated interactive map for more information on efforts by UN agencies, including UNDP and UNAIDS, in partnership with governments, civil society and international donors, to support countries in creating enabling legal environments for HIV responses and advance the findings and recommendations of the Global Commission on HIV and the Law.
A number of key knowledge products were published this past quarter, such as: Judging the epidemic: A judicial handbook on HIV, human rights and the law (UNAIDS, 2014); Protecting the rights of key HIV-affected women and girls in health care settings: A legal scan (UNDP, SAARCLAW, WAP+, 2013); HIV and human rights manual for the Democratic Republic of the Congo (French) (UNDP, 2013); Young people and the Law in Asia and the Pacific: A review of laws and policies affecting young people’s access to sexual and reproductive health and HIV services (UNESCO, UNFPA, UNAIDS, UNDP, Youth Lead, 2013); and Compendium of Judgments for Judicial Dialogue on HIV, Human Rights and the Law in Eastern and Southern Africa (UNDP, 2013).
US: Hiding one’s HIV status might be wrong, but it shouldn’t be a crime
Here in Pennsylvania, even if you use a condom, even if you are on antiretroviral therapy-which, for the record, when used together with condoms, reduces the risk of HIV transmission close to zero-and even if you do not transmit HIV to anyone, you can serve up to seven years in state prison for conducting sex work while being HIV-positive.
Uganda: Remove mandatory testing, mandatory disclosure and criminalization clauses in draft HIV-specific law, say activists
A coalition of HIV/AIDS activists has asked parliament to amend some clauses in the HIV/AIDS Protection and Control Bill 2010 before enacted into law. The activists said the HIV Prevention and Control Bill 2010 in its current form has clauses that will deter the fight against the epidemic. The amendments they want include removing mandatory testing, mandatory disclosure and criminalization. They also want the title of the Bill changed to HIV/AIDS Prevention and Management Bill. “Policy makers should treat this matter with urgency,” said Stella Kentutsi the Executive Director, National Forum of People Living with HIV/AIDS Networks in Uganda.
Nigeria's anti-gay law, condemned by US, Britain and Canada, will harm HIV response, says UNAIDS
Local and international groups fighting AIDS warned on Tuesday that a new Nigerian law criminalizing same-sex marriage and gay organizations will jeopardize the fight against the deadly disease. Activist Dorothy Aken’Ova said the new legislation, already dubbed the “Jail the Gays” law, will endanger and even criminalize programs fighting HIV / AIDS in the gay community. Aken’Ova is executive director of Nigeria’s International Center for Reproductive Health and Sexual Rights based in Minna, Niger state.
The UN agency to fight AIDS and the Global Fund to Fight AIDS, Tuberculosis and Malaria expressed “deep concern that access to HIV services for lesbian, gay, bisexual and transgender people will be severely affected by the new law in Nigeria, further criminalizing LGBT people, organizations and activities, as well as people who support them.”
UNAIDS said the law could harm Jonathan’s own presidential initiative to fight AIDS, started a year ago. Nigeria has the second largest HIV epidemic globally, with an estimated 3.4 million people living with HIV. The disease affects many more gay men than heterosexuals, with 2010 statistics estimating national HIV prevalence at 4 percent compared to 17 percent among gay men, according to UNAIDS.
President Goodluck Jonathan’s spokesman confirmed Monday that he had signed the Same Sex Marriage Prohibition Act on Jan. 7, providing penalties of up to 14 years in jail for gay marriage and up to 10 years’ imprisonment for membership or encouragement of gay clubs, societies and organizations. The U.S., Britain and Canada have swiftly condemned the law, with Secretary of State John Kerry saying Monday that it “dangerously restricts freedom” of expression and association of all Nigerians.
Human rights activists reported that dozens of gay men were being arrested in northern Nigeria in an apparent response to the law. The law also criminalizes people and groups who support “the registration, operation and sustenance of gay clubs, societies and organizations, processions or meetings in Nigeria.” Those convicted could be jailed for 10 years.
Even before it was the passed, the law was being used to persecute gays, Aken’Ova said. In Bauchi state, she said police entrapped four gay men and tortured them into naming others. She said the police have drawn up a list of 168 wanted gay men, of whom 38 have been arrested recently. An AIDS counsellor told the Associated Press he helped get bail for the men. He spoke on the condition of anonymity for fear he would be arrested as well.
Jonathan, Nigeria’s president, has not publicly expressed his views on homosexuality. But his spokesman, Reuben Abati, told The Associated Press on Monday night, “This is a law that is in line with the people’s cultural and religious inclination. So it is a law that is a reflection of the beliefs and orientation of Nigerian people … Nigerians are pleased with it.”