US: Sero Project and Transgender Law Center highlight the threat to transgender health created by HIV criminalisation

People living with HIV (PLHIV) who identify as transgender or third sex are more likely than any other group to feel that it is reasonable to avoid HIV testing (58%), disclosure of one’s HIV positive status to sex partners (61%) or accessing HIV treatment (48%) because of fear of HIV criminalization and distrust of the U.S. criminal justice system. The new findings from the National HIV Criminalization Survey were presented at the National Transgender Health Summit on May 15, 2013.

“These findings don’t surprise us,” said Cecilia Chung, Senior Strategist at the Oakland, California-based Transgender Law Center. “The data speaks to the long-standing history of stigmatization and discrimination of trans people, especially trans people of color, by the criminal justice system, because of either their race or their gender identity.” Chung was the first trans woman elected to chair the San Francisco Human Rights Commission, and she is currently a board member of the Global Network of People Living with HIV (GNP+).

More than 3,000 people living with and affected by HIV participated in the National HIV Criminalization Survey from June to August 2012, conducted online by the Sero Project in conjunction with Eastern Michigan University. The principal investigator, Laurel Sprague, is the Sero Project’s Research Director, Regional Coordinator of GNP+ North America, and a PhD candidate at Wayne State University in Detroit, Michigan.

Sprague noted, “Laws that criminalize non-disclosure of HIV status raise key issues about community norms, expectations of fair treatment by authorities, privacy and the increased vulnerability of certain communities.”

While the results revealed that HIV criminalization can discourage HIV testing—nearly 25% of HIV-positive respondents said that they knew one or more people who did not get tested for fear of criminal prosecution—when researchers returned to the survey results to closely examine transgender and third sex responses, they found that these particular respondents faced increased levels of vulnerability in relation to the U.S. justice system.

The majority of transgender and third sex respondents living with HIV (57%) reported that they feared false accusations of non-disclosure either a few times or frequently—a figure higher than that of any other group surveyed. Only 14% of transgender and third sex respondents living with HIV felt that a U.S. person living with HIV could get a fair court hearing if accused of non-disclosure.

When transgender and third sex respondents were asked their opinions about HIV criminalization, two out of three respondents (67%) said that non-disclosure of HIV status should not be criminalized. When asked if a sex worker living with HIV should disclose to clients, most transgender and third sex respondents (41%) said it depends on the circumstances. In fact, transgender and third sex respondents were the most likely to focus on the context (“it depends on the circumstances”) when determining whether there should be criminal charges for non-disclosure related to sex, drug use or sex work.

The transgender community’s historically fraught relationship with public health authorities, law enforcement and the criminal justice system also likely affects transgender and third sex attitudes about HIV criminalization.

Sprague shared a range of quotes from the survey to illustrate various nuanced transgender and third sex experiences and opinions regarding HIV criminalization:

• One trans woman explained why she didn’t press charges for non-disclosure: “In order to file charges, I [would have] had to disclose my rape, my [HIV] status and I would have to give up my privacy and be subjected to public scrutiny.”

• A third sex respondent said, “I think in cases of rape, incest and other power- or force-related situations, prosecutions should go forward. Otherwise, NO!”

• Another trans woman said that she didn’t press charges for non-disclosure because of the “difficulty in proving in court that he had infected me—and also accepting that we took equal risk in being intimate without protection.”

For policy makers and public health workers, the transgender and third sex responses to Sero’s National HIV Criminalization Survey should raise concern, especially the survey results that show increased barriers to HIV testing and treatment, as well as deep feelings of legal vulnerability due to HIV criminalization.

The responses highlight a critical need for access to legal education and legal services, safe and confidential locations for accessing health care, and support for spaces where transgender people living with HIV can share their experiences, provide mutual support, and work together to identify resilience strategies and advocacy priorities.

United States Conference of Mayors calls for “the elimination of HIV-specific criminal laws”

Today, the U.S. Conference of Mayors passed a resolution calling for “the elimination of HIV-specific criminal laws and implementation of approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of similar health and safety risks.”

It goes on to support the REPEAL HIV Discrimination Act and endorses the recommendations of the Presidential Advisory Council on HIV/AIDS for ending federal and state HIV-specific criminal laws, prosecutions, and civil commitments.

Full text below.

HIV DISCRIMINATION AND CRIMINALIZATION

WHEREAS, The U.S. Conference of Mayors has been a national leader on strategies to address HIV/AIDS for three decades, establishing in 1984 an HIV/AIDS Program and implementing a HIV/AIDS Prevention Grants Program with funding from the Centers for Disease Control and Prevention (CDC); and

WHEREAS, The National HIV/AIDS Strategy (NHAS) released by the White House includes a statement on the problem and public health consequences of HIV criminalization and notes that many state HIV-specific criminal laws reflect long-outdated misperceptions of HIV’s modes and relative risks of transmission; that criminal law has been unjustly used in the United States to prosecute and disproportionately sentence people with HIV; and that legislators reconsider whether these laws further the public interest and support public health approaches to preventing and treating HIV; and

WHEREAS, nearly all HIV-specific criminal laws do not consider correct and consistent condom use and effective antiretroviral therapy that reduces the risk of HIV transmission to near-zero as evidence of a lack of intent or ability to harm; and behaviors that according to the Centers for Disease Control and Prevention (CDC) have negligible risk of transmitting HIV, such as spitting and biting, have resulted in sentences as long as 35 years: and

WHEREAS, sound criminal justice and public health policy toward people living with HIV is consistent with an evidence-based approach to disease control and research demonstrates that HIV-specific laws do not reduce transmission or increase disclosure and may discourage HIV testing; and

WHEREAS, The Presidential Advisory Council on HIV AIDS, the Centers for Disease Control, and the United Nations Global Commission on HIV and the Law have conducted extensive scientific research and evidence reviews, finding that public health is endangered by HIV discrimination and criminalization and calling for comprehensive revision of state and federal laws and regulations,

NOW, THEREFORE, BE IT RESOLVED, that the U.S. Conference of Mayors calls for the elimination of HIV-specific criminal laws and implementation of approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of similar health and safety risks; and supports legislation, such as the REPEAL HIV Discrimination Act, that advances these objectives: and

BE IT FURTHER RESOLVED, that the U.S. Conference of Mayors endorses the recommendations of the Presidential Advisory Council on HIV/AIDS for ending federal and state HIV-specific criminal laws, prosecutions, and civil commitments.

Projected Cost: Unknown

US Conference of Mayors HIV Criminalization Resolution, June 25 2013

GNP+ and the HIV Justice Network release ‘Advancing HIV Justice: a progress report of achievements and challenges in global advocacy against HIV criminalisation’

A new report released today by the Global Network of People Living with HIV (GNP+) and the HIV Justice Network highlights the tireless work of advocates around the world challenging inappropriate criminal laws and prosecutions for HIV non-disclosure, potential or perceived exposure and transmission.

Advancing HIV Justice shows that advocates around the working to repeal, modernise or otherwise limit laws and policies that inappropriately regulate and punish people living with HIV have achieved considerable success. This is especially the case when policymakers or criminal justice system actors are open to learning more about scientific and medical advances in HIV prevention, treatment, care and support, and involve civil society – led by people living with HIV – to ensure that critical criminal law and human rights principles are followed.

“That is why we welcome the new, detailed guidance on limiting overly broad HIV criminalisation that was released last week by UNAIDS,” says Kevin Moody, International Coordinator and CEO of GNP+. “The guidance will help to continue advancing HIV justice, serving as a powerful new tool for people living with HIV, and those advocating on our behalf, in our work with policymakers and criminal justice system actors.”

Writing in the foreword, Susan Timberlake, Chief, Human Rights and Law Division, UNAIDS Secretariat, notes that Advancing HIV Justice “powerfully demonstrates that civil society advocacy on this issue is not only alive – it goes from strength to strength.”

In the 18-month period covered by the report (September 2011 to March 2013), significant advances were made in terms of:

building the global evidence base in order to better understand the ‘who, what, where, when and why’ of laws and prosecutions around the world;
generating persuasive social science that shows exactly why overly broad HIV criminalisation does more harm than good, often achieving exactly the opposite of what law- and policymakers intend in terms of public health and human rights;
challenging inappropriate or overly broad new laws in Africa, Asia, the Caribbean, Latin America and the United States;
advocating for law reform in Europe and the United States, including successful repeal in Denmark and modernisation of one of Switzerland’s two laws used to prosecute potential or perceived HIV exposure; and
addressing legal processes and enforcement, including the creation of prosecutorial guidelines in Scotland.

However, the report also highlights that the road to law and policy reform is not always straightforward or easy, due not only to complex intersections of laws, policies and practices, but also because of each country’s unique social, epidemiological and cultural contexts.

“Despite the many incremental successes of the past 18 months, more work and more funding is required to strengthen advocacy capacity,” says the HIV Justice Network’s co-ordinator, Edwin J Bernard, who co-authored the report with Sally Cameron. “HIV criminalisation is a complex issue. It entails a detailed understanding of diverse aspects of the criminal justice system; collection and analysis of evidence of the scope and impact of prosecutions across local and national boundaries; articulation and argument about complex moral and ethical issues of trust, blame and responsibility; and inclusion of HIV prevention and human rights priorities. Development of strategies against HIV criminalisation relevant to each individual jurisdiction requires time, effort, and the involvement of multidisciplinary experts.”

Advancing HIV Justice: A progress report of achievements and challenges in global advocacy against HIV criminalisation is available as a 52 page pdf that can be read or downloaded at: http://www.advancing.hivjustice.net

UNAIDS launches first-ever Judicial Handbook on HIV, Human Rights and the Law: Interview with UNDP's Mandeep Dhaliwal

The meeting also looked at specific actions that can be taken by Judges, to create a more supportive environment for people with HIV and key populations that are at-risk. UNAIDS also launched the first-ever Judicial Handbook on HIV, Human Rights and the Law at the meeting.

UNDP releases collation of progressive jurisprudence on HIV, Human Rights and the Law

The Compendium of Judgments, HIV, Human Rights and the Law, is a collation of progressive jurisprudence on HIV-related matters that highlights how the law has been used to protect individual rights. The compendium presents a user-friendly compilation of judgments from different national and regional jurisdictions.

UNDP releases report highlighting experiences and lessons learned from national HIV laws in Asia and the Pacific

This report is a direct follow-up to Global Commission on HIV and the Law: Risks, Rights and Health (July 2012) and the Asia-Pacific Regional Dialogue of the Global Commission on HIV and the Law convened in Bangkok in February 2011.

Canada: HIV groups upset because attorney general has no plans to consult them on prosecutorial guidelines

The Ontario government is writing guidelines for criminal prosecutions of HIV-positive people who don’t disclose their status before having sex, according to the Ministry of the Attorney General.

Positive Women: Exposing Injustice

(45 min, Canadian HIV/AIDS Legal Network, Canada, 2012)

Positive Women: Exposing Injustice is a 45-minute documentary film that tells the personal stories of four women living with HIV in Canada — a Quebecker who was charged for not telling her partner that she had HIV at the beginning of an ultimately abusive relationship, a young woman who chose not to pursue charges against the man who infected her, an Aboriginal woman who has personally faced extreme stigma and threats, and a Latina woman who describes the challenges of disclosure and intimate relationships for women living with HIV. Their stories are real, raw and from the heart, and tell the truth about what it’s like to live in a society that all-too-often criminalizes intimate behaviour between consenting adults and discriminates against those living with HIV. Legal experts, doctors, counsellors and support workers also lend their voices to challenge current Canadian laws that are letting down the very women they are meant to protect.

Produced and Directed by Alison Duke
Directors of Cinematography: Kim Derko and Robin Bain
Camera: Sean Black and Richard Chong
Composer and Sound Mixing: Derek Brin
Editor: Eugene Weis
Co-producers: Janet Butler-Mcphee, Cécile Kazatchkine and Alison Symington
Executive Producer: Canadian HIV/AIDS Legal Network

Arwel Jones introduces ‘Doing HIV Justice’ (Berlin, September 2012)

Arwel Jones, Head of the Law & Procedure Unit at the Crown Prosecution Service Strategy & Policy Directorate introduces the documentary ‘Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance’ ‘ at the workshop ‘How to advocate for prosecutorial guidelines’ held during a one-day seminar on HIV criminalisation in Berlin on 20 September 2012.

The seminar took place on the occasion of the twentieth anniversary of the European AIDS Treatment Group (EATG). The meeting was co-organised with Deutsche AIDS-Hilfe, the International Planned Parenthood Federation, and HIV in Europe, a multi-stakeholder initiative exchange on activities to improve early diagnosis and earlier care of HIV across Europe.

Video produced by Nicholas Feustel, georgetown media, for the HIV Justice Network.

Workshop: How to advocate for prosecutorial guidelines (Berlin, September 2012)

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Video toolkit: How to advocate for prosecutorial guidelines

May 30, 2013

New guidance from UNAIDS to limit the overly broad use of criminal laws to regulate and punish people living with HIV who are accused of HIV non-disclosure, exposure and/or transmission, recommends that:

Countries should develop and implement prosecutorial and police guidelines to clarify, limit and harmonise any application of criminal law to HIV. The development of such guidelines should ensure the effective participation of HIV experts, people living with HIV, and other key stakeholders. The content of these guidelines should reflect the scientific, medical and legal considerations highlighted in the present document.

So far, only two United Kingdom jurisdictions (England and Wales, and Scotland) have produced such guidelines. This workshop, held during a seminar on HIV criminalisation in Berlin in September 2012, discussed the challenges associated with the creation of such guidelines, providing important insights from prosecutors and civil society alike, and included the European premiere of the documentary ‘Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance’.

See more at: http://www.hivjustice.net/feature/how-to-advocate-for-prosecutorial-guidelines-video-and-transcript