The Supreme Court of Canada ruled on Friday October 5th that individuals who know they are HIV-positive are liable to criminal prosecution for aggravated sexual assault – which comes with a maximum sentence of life in prison and sex offender status – if they do not disclose this fact prior to sex that may risk a
Lawyers critique Supreme Court ruling
Some criminal lawyers are worried that the Supreme Court has imposed on people prosecuted for not disclosing their HIV-positive status to sex partners a “significant evidentiary burden” to show that they used a condom and that their viral loads were low when they had sex. A pair of decisions handed down on Oct.
New patient rights guides published as response to increased HIV testing in B.C.
Some B.C. hospitals and emergency rooms are beginning to offer HIV testing to all admitted patients as part of a pilot project – a result of new treatment options that can treat infections earlier. But this does not mean mandatory and uninformed testing, says the BCCLA.
Activist Tim McCaskell on Supreme Court decision
US: Public health experts and politicians support advocacy to modernise Iowa’s HIV law
Activism to modernise the unscientific, unjust and stigmatising HIV-specific criminal statute in Iowa is heating up. Last month, the Iowa HIV Community Planning Group voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalisation statute.
Next Monday, October 15th in the state capital, Des Moines, there will be another of a series of planned CHAIN/Sero Project community forums highlighting these efforts. All Iowa legislators within a 30 mile radius of Des Moines have been invited and Iowa Senator Matt McCoy (Democrat), who earlier this year introduced a bill to repeal and modernise the law, will be in attendance. Although the bill didn’t make it out of subcommittee, he plans to reintroduce another in the legislative session that begins in January.
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HIV is not a crime: Monday 15 Oct, 6:30pm at the First Unitarian Church of Des Moines,1800 Bell Ave, Des Moines, Iowa. |
Globegazzette.com covered the last community forum, held in Mason City in September, in their story, ‘Groups call for revising HIV disclosure statute.’
The state of Iowa currently has one of the strictest HIV laws in the nation, making the lack of disclosure a Class B felony, punishable by up to 25 years in prison and a lifetime of sex offender status.
The statute makes no exception for lack of transmission of the HIV virus, nor does it take into account the fact that a person infected with HIV is taking the prescribed medication and has very little or no chance of passing it on.
Gay rights groups and others, including the Iowa Department of Public Health, are calling for modernization of the 1998 statute to focus penalties only on intentional or documented transmission of the HIV virus.
They say Iowa’s law is having the unintended effect of discouraging individuals from undergoing HIV testing and from obtaining access to medications that could save their lives and the lives of everyone with whom they may have intimate contact.
Iowa, which has a relatively low HIV incidence rate, ranks second in the nation in prosecutions for nondisclosure.
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Pictured Left to Right: Iowa State Representative Sharon Steckman and State Senator Amanda Ragan, CHAIN community organizer and Sero Advisory Board Member, Tami Haught leading Iowa’s campaign to modernize the HIV criminalization law and Sero Advisory Board Member and Activist, Nick Rhoades at a community forum in Mason City on Iowa’s HIV Criminalization Law on Monday, September 10, 2012. (Picture courtesy of The Sero Project) |
Reproduced below is the press release from CHAIN (Community HIV/Hepatitis Advocates of Iowa Network) announcing the Iowa HIV Community Planning Group vote and providing background to their advocacy.
HIV Community Planning Group Supports Repeal of Iowa HIV Criminlization Statute
Des Moines, September 25, 2012
In an historic move, the Iowa HIV Community Planning Group has voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalization statute.
Iowa, like most states, has a law that prohibits intentional transmission of communicable diseases. This statute, Iowa Code 139A.20 is part of public health code. HIV, however, is covered by a separate criminal code, Iowa Code 709C, which makes exposing someone to HIV without their consent a felony punishable by up to 25 years in prison. Repeal of 709C would allow HIV to be covered by the same public health code that governs other infectious diseases.
The National HIV/AIDS Strategy and the National Alliance of State and Territorial AIDS Directors has called for review of HIV criminalization statutes to bring them in line with contemporary science and knowledge about the real routes, risks, and consequences of HIV transmission. The Iowa Department of Public Health has echoed the call for review of the statute. In a letter to the editor of The Des Moines Register on July 29, Randy Mayer, Chief of the Bureau of HIV, STD, and Hepatitis, asked that HIV be treated in the same way as other serious infectious diseases.
“Testing and treatment are our best tools for fighting the epidemic in Iowa Research has now demonstrated that the statutes haven’t had the intended effect of promoting disclosure. We believe that our public health efforts will be more successful without having to fight the stigma that these statutes can create,” said Mayer.
“Having the prestige and expertise of the HIV Community Planning Group working to repeal Iowa’s criminalization statute is vitally important,” said Tami Haught, an HIV+ Nashua resident who is coordinating CHAIN’s statewide campaign to reform the Iowa statute. “The members of the CPG include some of the best-informed and most respected public health professionals and community advocates combating HIV We believe their recognition that the criminalization statute is hurting the public health will be persuasive with legislators.”
Iowa’s statute 709C imposes harsh penalties on persons with HIV who cannot prove they disclosed their HIV status in advance to sex partners. About 25 Iowans with HIV have been charged to date, with some convictions resulting in lengthy sentencing and lifetime sex offender registration requirements, even though HIV was not transmitted and there was little or no risk of it being transmitted.
The statute has been criticized by public health officials, legal experts, and patient advocates in Iowa and across the country as counter-productive, discriminatory, and contributing to further stigmatization of people with HIV. About 36 U.S. states and territories have HIV-specific criminal statutes Originally intended to slow HIV transmission, these laws were typically passed years ago when much less was known about HIV transmission A growing body of research shows how these statutes drive stigma, discourage testing, and are making the epidemic worse.
“HIV criminalization discourages people from getting tested—you can’t be prosecuted if you don’t know your HIV status—yet we know that most new infections are transmitted by people who have not yet gotten tested,” said Jordan Selha, co-chair of Iowa’s Community Planning Group “It’s time we treat HIV like other communicable diseases and use public health science rather than criminal law to guide our approaches to prevention No other disease is singled out as a criminal threat in this way.”
CHAIN has coordinated a statewide campaign to educate and mobilize communities to lobby lawmakers to review the statute when the legislature goes into session in January 2013. They have held community forums in Mason City and Ames.
You can help efforts to repeal the statute by contacting your state legislators and the governor’s office and asking that Iowa Code 709C be repealed. CHAIN will be holding an educational forum on October 15th at the First Unitarian Church of Des Moines and at Simpson College in Indianola on January 16, 2013.
The HIV Community Planning Group promotes, through an ongoing participatory process, effective HIV programming in Iowa in order to reduce the spread of HIV and to provide access to services for those infected. The Centers for Disease Control and Prevention (CDC) mandated community planning for HIV prevention in 1993. The process is designed to create a collaborative effort between public health and the communities they serve.
CHAIN is very excited to have the support of the Iowa HIV Community Planning Group. To join CHAIN’s listserve or get involved with CHAIN and the education and mobilization campaign, contact tami.haught2012(at)gmail.com, or follow CHAIN on Facebook.
Canada: Study finds HIV criminalisation creates uncertainty, fear, and vulnerability
Last week’s devastating ruling of the Supreme Court of Canada was quick to dismiss evidence that that HIV criminalisation was damaging to public health.
“The only ‘evidence’ was studies presented by interveners suggesting that criminalization ‘probably’ acts as a deterrent to HIV testing,” wrote Chief Justice McLachlin. “The conclusions in these studies are tentative and the studies were not placed in evidence and not tested by cross-examination. They fail to provide an adequate basis to justify judicial reversal of the accepted place of the criminal law in this domain.”
And yet a few weeks earlier, a Canadian study was published that highlights exactly how the criminalisation of HIV non-disclosure is damaging public health. It may not be possible to prove that it deters testing, but it certainly creates all kinds of problems for people living with, and at risk of, HIV.
The lead author of the study, How criminalization is affecting people living with HIV in Ontario is Professor Barry D. Adam, University Professor of Sociology at the University of Windsor, Ontario, and Senior Scientist and Director of Prevention Research at the Ontario HIV Treatment Network, Canada.
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Download the report here |
Drawing on results from the Ontario HIV Treatment Network Cohort Study, the Positive Places Healthy Places Cohort Study, and in-depth interviews with 122 HIV-positive people, the report examines how people living with HIV in Ontario perceive the law and the legal obligation to disclose their HIV-positive status to prospective sexual partners, as well as their perceptions of the changing public climate affected by the increasing prominence of criminal discourses applied to HIV.
The report shows how the criminal justice system and media coverage have created a climate of anxiety (though not all feel equally affected), affected views on when disclosure is (and is not) necessary, shaped messages from health professionals, and affected disclosure practices. The legal and media framing of HIV as a responsibility to disclose potentially undermines HIV prevention messaging and places ever greater numbers of people living with HIV in jeopardy.
Most study participants believed that disclosure of HIV-positive status should not be a legal requirement if protected sex is practiced. There was no significant variation in opinion by age, gender, sexual orientation, or ethnicity, but more educated respondents showed less punitive views.
The study’s primary finding is that that HIV criminalisation has unfairly shifted the burden of proof so that people living with HIV are held to be guilty until proven innocent and that:
- People with HIV are now caught in a difficult he-said/(s)he-said situation of having to justify their actions;
- disgruntled partners now have a legal weapon to wield against them regardless of the facts; and
- the onus now falls on women whose male partners could ignore their wishes regarding safer sex.
In terms of general impact, many respondents reported a heightened sense of uncertainty, fear, or vulnerability, but others felt that the climate of acceptance is still better than in the early days of the epidemic, or that the prosecution of the high profile cases is justified and these people are giving all people with HIV a bad name.
To set the scene, in its introduction the report provides an extremely well-written exposition of why criminalisation HIV non-disclosure is problematic from a human rights, as well as a public health perspective. An edited version, below, provides you with a flavour of the insights.
The relationship between disclosure and HIV risk is complex at best… While some studies have found an association between disclosure and condom use, more have found no relationship…Disclosure poses a range of challenges in everyday social situations. The demand to disclose essentially requires HIV-positive people to place themselves in a situation to be rejected or stigmatized, a situation exacerbated in a climate of rising prosecution and media attention…
Ultimately reliance on disclosure makes sense as an HIV prevention measure only if both partners are certain of their serostatus, though epidemiologists point out that significant percentages of people who are HIV-positive do not know they are. In Canada, an estimated 26 percent of people infected with HIV are unaware of this fact. Indeed some researchers contend that transmission by those unaware of their infection accounts for a significant portion of new infections. Criminal prosecutions for non-disclosure encourage at-risk persons to rely on prospective sex partners to disclose their HIV status, if positive, and to assume that there is no or minimal risk in the absence of positive serostatus disclosure, evident in complainants’ testimony at trial in such cases. Serostatus disclosure laws may thus foster a false sense of security among HIV-negative persons who may default to forgoing safer sex unless notified of their partners’ HIV-positive status. Reliance on disclosure, then, is a shaky foundation for HIV avoidance. By absolving people of responsibility for practising safer sex, it may even increase vulnerability to infection.
Disclosure, then, is often challenging to accomplish in everyday life and the research evidence shows that disclosure is far from reliable as a method of avoiding HIV. The accumulation and consolidation of a body of legal doctrine that rests primarily on an obligation to disclose by those who know they are HIV-positive raises a number of problems in the pursuit of effective public policy in HIV prevention. There is, then, a need to test the presuppositions underlying the legal obligation to disclose as an HIV prevention strategy and to examine the real effects of criminalizing non-disclosure on people living with HIV.
Towards the end of the report, the authors discuss the impact of criminalisation of HIV non-disclosure on public health. Again an edited version, below, provides you with a flavour of the insights.
In Canada in recent years, the state has been shifting resources from social services to law enforcement… In HIV, the prosecutorial arm of the state has expanded while support for ASOs and for HIV prevention has become increasingly tenuous. The move on the part of some attorneys general to press for more punitive solutions to HIV prevention has many pitfalls and unintended consequences that amount, in the long run, to a public policy with poor prospects for meaningful reduction in HIV transmission combined with real damage to the lives and well-being of [people living with HIV]. Indeed obsessive focus on disclosure may create the conditions of accelerated transmission if people abandon safe sex in favour of disclosure as the preferred method of HIV avoidance…
Criminalization, whether minimal or expansive in punitive scope, has little potential to slow the advance of the HIV epidemic and has considerable potential to undermine prevention efforts currently under way….At the same time, increasing reliance on the criminal justice system to enforce a principle of universal disclosure of HIV-positive status, regardless of the likelihood of transmission, presses [people living with HIV] into an untenable double bind: they must place themselves into the risky position of heightening the possibility of rejection, stigmatization, and prosecution. Double binds can scarcely be the foundation for realistic public policy or consistent practice among [people living with HIV]. Only decriminalization and destigmatization would begin to create the conditions to make disclosure of sero-status safe. But perhaps more importantly, disclosure has been shown to be an unreliable method of reducing HIV transmission. Obscured by the criminalization debates is the fact that protected sex, especially in a situation where treatment has succeeded in attaining an undetectable viral load in the HIV-positive partner, continues to be a much more reliable method of avoiding HIV (as well as several other sexually transmitted infections).
It is interesting to note that the Supreme Court has, at least, recognised this last observation. However, the reality of the ruling is that it states very clearly that disclosure alone is enough to negate criminal liability (notwithstanding difficulties of proving that this occurred). It also very worringly undermines safer sex messaging by stating that condoms alone (or low viral load alone) are not ‘safe’ enough.
The study concludes with the following recommendations:
- Among police and prosecutors to employ consistent evidence-informed principles in the laying of charges (i.e. by developing prosecutorial and police guidelines)
- Among journalists to employ a rigorous decision-making matrix that strictly minimizes the publication of the identity of people living with HIV, and
- In public health and AIDS service organisations to develop a consistent counseling policy that does not mistake universal disclosure for prevention but rather focuses on how best to engage the sexual cultures of at risk populations to advance safer sex practice.
Dr Mark Tyndal on Supreme Court decision
On Oct. 5, the Supreme Court handed down a decision with major implications for HIV prevention and public health in Canada. In a 9-0 ruling, the court found that people infected with HIV must disclose their HIV status to their sexual partners.
HIV criminalisation activist Nick Rhoades writes about his life as a convicted sex offender
Nick Rhoades: “I had never cried the whole time I was in jail, prison or up to that point of my probation. But that day, I sat on the edge of the bed and sobbed … so far away from my friends and family.
Law professor Robert Leckey on the Supreme Court ruling
The Supreme Court of Canada has ruled on the legal status of sexual intercourse by someone who fails to disclose that he or she is HIV-positive. It remains a serious crime, with a maximum life sentence in prison. The troubling thrust of the high court’s message is that HIV-negative people have the right to engage in unprotected sex, no questions asked.
Canada: Supreme Court decisions increase risk of violence, coercion & criminalization against women with HIV (Editorial)
Reposted from AIDS ACTION NOW!
Today the Supreme Court of Canada cemented Canada’s position as the world-leader in the criminalization of people living with HIV. We want to focus our first post on the negative impact of the decision on women living with HIV.
“If you ever leave me,” he says, “This is what I’ll do to you. I will take you to court. And I will tell them that you infected me…” Aboriginal Woman Living with HIV, Our Search for Safe Spaces: A Qualitative Study The Role of Sexual Violence Among Aboriginal Women Living with HIV. Vancouver, BC: Canadian Aboriginal AIDS Network, 2009.
HIV non-disclosure is a women’s issue and a feminist issue and an issue for all concerned with health and human rights. Violence against women is the same type of issue. Today, the next chapter was written in the cautionary tale of what happens when entrenched privilege and ideas about what is means to “protect women” set the agenda for marginalized, highly stigmatized people. The Supreme Court of Canada delivered two landmark rulings about HIV, and the criminal law. Central to these rulings was a discussion about protecting the rights of women from violence and coercion . The two cases are DC and Mabior; click on the links to go to the Court’s reasons for decision.
The question the Court looked at was: Under what circumstances does a person living with HIV have an obligation under the criminal law to disclose their HIV status to a sexual partner? The focus was on sexual intercourse, condoms, and low or undetectable HIV viral load. The Court decided that there is a new test in the land as of today: If the sex carries a realistic possibility of HIV transmission, then the HIV-positive person has a duty to disclose. The Court provided some guidance about the meaning of realistic possibility—if the person living with HIV has a low viral load and uses a condom, there is no realistic possibility of HIV transmission and they have no criminal law duty to disclose. But the vague language of realistic possibility opens the door for more prosecution and persecution of those living with HIV. The decisions have done nothing to address the realities facing people, and in particular women, living with the disease.
Sexual assault lies at the heart of the he criminal law applied to people living with HIV who allegedly do not disclose. Sex without consent is a crime—what exactly consent means in the context of HIV-positive people having sex is defined in relation to the risk of HIV transmission involved with the sex. HIV-positive people are most often charged with aggravated sexual assault—maximum penalty of life imprisonment, plus registration as a sex offender. You got it right, sexual assault law, the same law applied to violent, coerced, forced sex—to rape. With the same penalties. But with much higher rates of conviction for HIV non-disclosure than other prosecutions for sexual assault. And let’s be clear, people like DC and Mabior were convicted without ever transmitting HIV to their sex partners. Even putting someone at risk of HIV transmission is a crime, not just transmitting HIV.
Although sexual assault law was put in place to protect women–who have historically borne and continue to bear the overwhelming burden of sexual violence–today’s decision will likely lead to increased violence toward women who live with HIV. It will likely also prevent them from accessing HIV testing, treatment, services and supports.
When it is safe to do so, the vast majority of people living with HIV disclose their status to their partners, or take steps to effectively protect their partners from HIV transmission. However, imbalances in power relationships between men and women, including between men and transgendered women, make it more difficult for women living with HIV to consistently disclose their status or to negotiate safer sex practices with their male partners. Negotiating condom use is particularly difficult as it requires explicit consent and cooperation of men. Women are vulnerable to violence if they do not concede to the sexual desires of their male partners. Violence against women is also associated with disclosing HIV status. Men have used criminal allegations against women living with HIV as a weapon of abuse, which pushes them further away from justice, autonomy, and safety. The Supreme Court’s decision in Mabior has given abusive men a more powerful tool to coerce, control and to trap in abusive relationships women living with HIV.
One of the two cases the Supreme Court decided today involved criminal charges against a Quebec woman, known by her initials DC. DC and her son were beaten up by her common law spouse, as their live-in relationship was coming to an end in 2004. He was charged, sent to trial, convicted, and got off with a light sentence because …. Guess what he did? He called the cops and told them that DC had not disclosed her HIV status to him the first time they had sex, four years before he beat her up. And he said no condom was used. Guess who the cops believed? Guess who the trial court judge believed? You got it. DC was arrested in 2005, and convicted in 2008 after a trail. She has been fighting ever since to clear her name. Today the Supreme Court did that, by saying the trial judge was ham-fisted in the way he weighed and assessed the evidence about whether a condom was used. The Supreme Court tied itself in a knot to find a technical legal ground for acquitting DC. We are sure that this “victory” doesn’t start to make up for the nightmare DC and her family have suffered for close to 8 years now.
But that’s not all the Supreme Court did today. If the DC case was to start all over tomorrow, we are pretty sure that she would find herself in the very same situation as she did back in 2005. Having to defend herself against her abusive ex-spouse’s charges, hounded by gung-ho police, and persecuted by Crown prosecutors bent on enforcing, to the harshest degree, laws designed to protect women from male violence. Ironic doesn’t even begin to describe this situation. Unjust? Unconscionable? Outrageous miscarriage of justice?
Wait, it gets “better” for women under this decision, under the guise of protecting women’s equality, autonomy, and right to choose with whom they will have sex and the circumstances of that sex. By our reckoning, DC would be in a worse position under the new test set out by the Supreme Court. Under the old test, a number of Canadian courts of appeal had decided that people should not go to jail if their HIV viral load was low or undetectable, or if they used condoms. One or the other—not both. In fact, the Quebec court of appeal acquitted DC because her viral load was undetectable, meaning she posed no significant risk—the old test, established by the Supreme Court in the 1998 Cuerrier case—of transmitting to her partner. Now? Under the Supreme Court’s new realistic probability test DC would have to show that she had a low or undetectable viral load, and that the guy used a condom. And she would bear what the Supreme Court likes to call the “tactical burden” of putting evidence of condom use and her viral load before the court. So much for the presumption of innocence, and the Crown having to prove all elements of crime beyond a reasonable doubt in order to secure a conviction. So much for upholding the equality rights and dignity of women.