In The Life’s 2011 report, Legalizing Stigma, was the first on a national US TV channel (PBS) to look at the issue of HIV criminalization from the perspective of people targeted by criminal laws. The segment led to public education efforts, beginning with the first ever Congressional Briefing on this issue.
Canada: Urgent sign on statement – ask Supreme Court to stop inappropriate criminalisation of people with HIV
On February 8, 2012, the Supreme Court of Canada will hear two landmark cases on the issue of criminalisation of HIV non-disclosure in R v. Mabior and R v. DC. The Court’s decisions in these two appeal cases will have profound implications not only for people living with HIV, but also for Canadian public health, police practice and the criminal justice system.
There has been a marked increase in the frequency and severity of criminal charges for HIV non-disclosure in Canada where more than 130 people living with HIV have been charged in less than 15 years. This includes numerous cases in which their activity posed no significant risk of HIV transmission. Simply put, this is a miscarriage of justice.
The Canadian HIV/AIDS Legal Network is calling for signatories from international organisations and professionals working on issues related to HIV and public health and/or law to endorse the following statement by Wednesday, Feb 1st at 5:00 p.m. EST.
IN ADVANCE OF LANDMARK SUPREME COURT CASE, SUPPORTERS WORLDWIDE CALL ON CANADA TO STOP CRIMINALIZING PEOPLE LIVING WITH HIV
Monday, February 6, 2012 – Canadian criminal law requires people living with HIV to disclose their status before engaging in behaviour that involves a “significant risk” of transmitting the virus. Yet people have been charged, and convicted for not disclosing their status, even though their activity did not pose a significant risk of HIV transmission. This is a miscarriage of justice. Further, it has contributed to a climate marked by anxiety, fear, stigma and misinformation that undermines HIV counselling, education and prevention efforts. This puts all Canadians at greater risk.
On February 8, the Supreme Court of Canada will hear two landmark cases on this important issue. We, the undersigned, respectfully ask that the Court use this opportunity to explicitly reconfirm that people living with HIV are not criminals in cases where the threshold of significant risk is not met – including cases where condoms are used or the HIV positive person was being successfully treated with antiretroviral drugs. We ask that the Court instruct lower courts that significant risk must be determined on the basis of the best available scientific evidence, not on assumptions, prejudice or fear.
Finally, we call on the provincial and territorial Attorneys General to follow suit and adopt guidelines to limit prosecutions in cases of HIV non-disclosure. These prosecutions are not helpful in putting an end to this epidemic, and the radical over-extension of the criminal law is counter-productive and damaging.
Please send your signature as you would like it to appear on the signatory list – including your name, organisation, title and geographic location – to info@aidslaw.ca. If your organisation will sign on in full, please indicate that as well and include the French translation of your organisation’s name if available.
If you are an individual without an organisational affiliation or professional designation and you would like to also endorse this statement please do so to the email address above.
For more information on criminalisation of HIV non-disclosure in Canada, please visit http://www.aidslaw.ca/stopcriminalization.
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Austria: Man accused of criminal HIV transmission fights “unconstitutional” forced blood test
A man in Austria is taking a case to the Constitutional Court that challenges the forcible testing of blood for HIV (as well as for use in phylogenetic analysis) that was legalised on 1 January 2012 through an amendment of the Criminal Procedure Code by the Prevention of Terrorism Act 2011. He is being supported by Rechtskomitee LAMBDA, whose president, Dr. Helmut Graupner, is also his defence counsel.
Full details of the case, and the problematic application of this law, from the Rechtskomitee LAMBDA press release issued today are included in full below (English version is slightly modified from the original release; German is the original.)
From 1 January 2012: Forced Hiv-Testing: Rechtskomitee LAMBDA supports case in the Constitutional Court
The Prevention of Terrorism Act 2011 also amended the Criminal Procedure Code. It makes forcible HIV-testing legal as of 1 January 2012, despite the fact that the Constitution prohibits taking blood by force. A case has already been brought to the Constitutional Court.
The Prevention of Terrorism Act 2011, passed by federal parliament in October 2011, legalizes taking blood by force in order to prove the misdemeanor of Endangering Human Beings by Transmittable Diseases (§ 178 Criminal Code). Up to now forcible blood taking (in the case of not intoxicated defendants) had been restricted to sexual felonies or other felonies incurring a maximum penalty of five years.
Since 1 January 2012 this changed, despite the fact that the Constitutional Court prohibits forcible blood withdrawals, as no one may be forced to supply his body as evidence against him. The first case challenging this new power of the criminal police has already been taken to the Constitutional Court.
The applicant, who has no criminal record, is HIV-positive and asks the Constitutional Court to strike down the amendment. The state prosecutor has started proceedings against him under § 178 CC after another HIV-positive man had accused him of infecting him with HIV. Indeed the two men had sex with each other years ago, but in accordance with the safer sex rules propagated by the Ministry of Health and the AIDS Service organisations (oral sex without ejaculation into the mouth).
Blackmailed and reported to the police
The accuser, who has a massive criminal record of violent, drug and property offences, reported the defendant to the police years after the sexual contact and only after the man refused to fulfil his considerable financial demands. In addition the accuser admitted during his interrogation that he had unprotected sex with others, and he had searched for casual sex (“sexdates”) in the internet displaying in his profile the information “Safer Sex: Never”. Even more so the man, according to his own depositions, is addicted to heroin and thus had been exposed also to other ways of transmission than the sexual one.
The case against the accuser (for aggravated blackmail) has been dropped immediately after the interrogation of both men due to “conflicting depositions”. Not so the case against the defendant for endangering by transmittable diseases (which offence is fulfilled just by engaging in unsafe sex without the necessity of causing infection). Also in regard to this offence there were “conflicting depositions” but the prosecutor wanted a blood test (for phylogenetic analysis).
Potential for conviction of innocents
A phylogenetic analysis however cannot prove an infection. And phylogenetic analyses bear the risk of false results and misinterpretation at the expense of a defendant. There are no standards (guidelines) so far for such analyses in forensic context and its results unfortunately again and again are misunderstood and misinterpreted by the courts. UNAIDS and the EU-Fundamental Rights Agency for years have been highlighting this.
So the man did not agree to blood withdrawal from him as he fears, because he is innocent, to be wrongfully convicted on the basis of such a blood test. Since 1 January he now is facing the danger of forced blood taking at any time. Therefore he has addressed the Constitutional Court.
“It is incredible that the governing coalition passed this unconstitutional law,” says president of Rechtskomitee LAMBDA (RKL) and defence counsel of the man, Dr. Helmut Graupner, “As too often we again have to hope for the Constitutional Court”.Seit 1.1.2012: Zwangs-Hiv-Tests: Rechtskomitee LAMBDA (RKL) unterstützt Antrag an den Verfassungsgerichtshof
Das Terrorismuspräventionsgesetz bringt auch eine Novelle der Strafprozessordnung. Seit 1.1.2012 sind gewaltsame Blutabnahmen bei Verdacht einer Ansteckung mit Hiv zulässig, obwohl die Verfassung zwangsweise Blutabnahmen verbietet. Eine Beschwerde liegt bereits beim Verfassungsgerichtshof.
Mit dem im Oktober 2011 verabschiedeten Terrorismuspräventionsgesetz wurden Zwangsblutabnahmen bei Verdacht des Vergehens der Gefährdung von Menschen durch übertragbare Krankheiten (§ 178 Strafgesetzbuch) erlaubt. Bisher waren zwangsweise Blutabnahmen (bei nicht berauschten TäterInnen) nur bei Verdacht auf ein Sexualverbrechen oder auf ein (anderes) Verbrechen zulässig, das mit mehr als 5 Jahren Freiheitsstrafe bedroht ist.
Das ist seit 1. Jänner anders, obwohl der Verfassungsgerichtshof zwangsweise Blutabnahmen verbietet, weil niemand gezwungen werden darf, seinen Körper als Beweismittel gegen sich selbst zur Verfügung zu stellen. Die erste Beschwerde gegen die neue Befugnis der Kriminalpolizei liegt bereits beim Verfassungsgerichthof.
Der unbescholtene Antragsteller ist Hiv-positiv und beantragt die Aufhebung der Gesetzesnovelle. Die Staatsanwaltschaft (StA) hat gegen ihn ein Ermittlungsverfahren wegen des Verdachts gem. § 178 StGB eingeleitet, weil ihn ein anderer Hiv-positiver Mann beschuldigt, ihn mit Hiv angesteckt zu haben. Tatsächlich hatte der Mann mit diesem anderen Mann vor Jahren einvernehmlichen sexuellen Kontakt, jedoch entsprechend den vom Gesundheitsministerium und den Aids-Hilfen propagierten Safer Sex Regeln, also mit Sexualpraktiken, bei denen eine Ansteckung nicht möglich ist (Oralverkehr ohne Ejakulation in den Mund).
Erpresst und angezeigt
Der mehrfach wegen Gewalt-, Suchtgift- und Vermögensdelikten vorbestrafte Anschuldiger hat die Anzeige, in der er ungeschützten passiven Analverkehr behauptete, erst Jahre nach dem sexuellen Kontakt erstattet und erst nachdem der Beschuldigte nicht bereit war, seine erheblichen finanziellen Forderungen zu erfüllen. Zudem hat er selbst in seiner Einvernahme angegeben, anderweitig ungeschützte sexuelle Kontakte gehabt zu haben und hatte er im Internet flüchtige sexuelle Kontakte („Sexdates“) gesucht mit einem Profil, auf dem angegeben war: „Safer Sex: Niemals“. Darüber hinaus ist dieser Mann nach seinen eigenen Angaben heroinsüchtig, und war daher, außer dem sexuellen noch anderen Übertragungswegen für eine Hiv-Infektion ausgesetzt.
Das gegen den Anschuldiger (wegen des Verdachts der schweren Erpressung) eingeleitete Strafverfahren wurde „wegen der widerstreitenden Aussagen“ sogleich nach Einvernahme der beiden Männer eingestellt. Nicht jedoch das Verfahren gegen den Beschuldigten wegen des Verdachts der Gefährdung durch übertragbare Krankheiten (wofür bereits unsafer Sex ausreicht, ohne dass es zu einer Ansteckung gekommen ist). Auch hier bestanden widerstreitende Aussagen, jedoch begehrte der Staatsanwalt eine Blutuntersuchung (phylogenetische Untersuchung).
Gefahr der Verurteilung Unschuldiger
Eine phylogenetische Untersuchung kann aber eine Ansteckung nicht beweisen. Und phylogenetische Untersuchungen bergen das Risiko falscher Ergebnisse und von Fehlinterpretationen zu Lasten des Beschuldigten Es gibt (noch) keine Standards (Richtlinien) für die Durchführung dieser Analysen zu gerichtlichen Zwecken und ihre Ergebnisse werden von Gerichten leider immer wieder missverstanden und fehlinterpretiert. Darauf weisen UNAIDS und die EU-Grundrechteagentur seit Jahren hin.
Der Mann hat daher einer Blutabnahme nicht zugestimmt, weil er befürchten muss, auf Grund der Testergebnisse unschuldig verurteilt zu werden. Seit 1. Jänner muss er nun jederzeit die gewaltsame Abnahme einer Blutprobe fürchten und hat sich daher an den Verfassungsgerichtshof gewandt.
„Es ist unglaublich, dass die Regierungsparteien, gegen die Opposition, diese verfassungswidrige Regelung beschlossen haben“, sagt der Präsident des RKL und Rechtsanwalt des Antragstellers Dr. Helmut Graupner, „Es bleibt, wie so oft, die Hoffnung auf den Verfassungsgerichtshof“.
HIV is Not a Crime
(8 min, Zero, USA, 2012)
This short film is part of Sero’s ongoing documentation of the experiences of people with HIV who have been prosecuted for “HIV crimes”. To see a growing collection of individual interviews please visit Sero’s video page.
Important new research project on HIV criminalisation and law reform in Nordic countries by Prof. Matthew Weait
Following on from yesterday’s post on advocacy efforts underway in Sweden, other Nordic countries and Switzerland, my friend and colleague, Matthew Weait, Professor of Law and Policy
at Birkbeck College, University of London is about to undertake an important new research study in Denmark, Finland, Norway and Sweden next Spring.
With Matthew’s permission, I’m replicating the note he sent me with all the details and further background. If you can help, please contact Matthew directly, or leave a comment on my blog.
The Decriminalization of HIV Transmission and Exposure: Advocacy, Activism and Law Reform in Denmark, Norway, Finland and Sweden
Dear Friends and Colleagues,
I am writing to ask if you would be willing to assist in a research project that I will be undertaking in Denmark, Finland, Norway and Sweden in March / April 2012. The project is summarised and discussed in more detail below, but put at its simplest it will be exploring the ways in which HIV activists and others have sought to reform criminal law concerning HIV transmission and exposure in the region. My aim is to improve our understanding of advocacy and activism in this field, and to gather evidence about what works and what doesn’t. Although we have an increasing amount of data about the effects of criminalization, there is very little evidence about how civil society has responded to criminalization, and I am hoping this project will not only provide that evidence but assist people elsewhere in their reform efforts.
As explained below, the research will be conducted primarily through interviews with those who have been involved in reform efforts, and I would like to speak to as many people as possible during my time in your countries.
If you are willing and able to participate I would be very grateful if you could contact me and let me know where and when it would be convenient to meet. I would also appreciate any advice about who else I should try to contact (including, if possible, politicians, lawyers etc who have been involved). I will be in your cities between the following dates:
9/3 – 18/3
Copenhagen
18/3 – 23/3
Oslo
23/3 – 30/3
Helsinki
30/3 – 5/4
StockholmI am funding this research project myself (though I am hoping to get a travel grant from the Wellcome Trust). It is not sponsored in any way.
I very much hope to hear from you soon.
All best wishes
Matthew
Summary of Project
The project will explore recent initiatives by Scandinavian civil society organizations and activists to the criminalization of reckless and negligent HIV transmission and exposure in the region. Despite having levels of HIV prevalence which are among the lowest in Europe, survey data indicates that the Scandinavian countries have among the highest rates of criminalization (as measured by convictions per 1000 people living with HIV (PLHIV)). This is not only counter-intuitive, when research shows that these are countries which have lower than average imprisonment rates and that their citizens are, in general, less punitive in their attitudes towards offending behaviour than those elsewhere in Europe, it ignores UNAIDS best practice guidance on the use of criminal law as a response to the epidemic. The principal goal of the project is to contribute to our understanding of the effectiveness or otherwise of law reform strategies in the field of HIV and public health. If, as experts agree, the inappropriate use of criminal law impedes HIV prevention efforts and contributes to the stigmatization of PLHIV, it is important to understand the dynamics of, and barriers to, legal reform.Background
The European region is suffering from an epidemic of criminalization. Across the continent, people living with HIV are being investigated, prosecuted, convicted and imprisoned for non-deliberate HIV exposure and transmission, contrary to the best practice guidance of UNAIDS and other international organizations concerned with preventing the spread of HIV and promoting the health and human rights of PLHIV. It is an epidemic that is impeding efforts to normalize HIV and reduce stigma and to affirm the importance of shared responsibility for sexual health. It is an epidemic whose impact is felt especially by people who already experience particular social and economic exclusion and vulnerability. It is an epidemic that, in theory at least, has created some 2.2 million potential criminals in Western and Central Europe.Although all but a few countries in the region have laws which criminalize HIV transmission and exposure, the scale and intensity of their enforcement is not evenly distributed. Based on available data relating to HIV prevalence and convictions per 1000 PLHIV, there is a marked difference between the Scandinavian countries (Denmark, Sweden, Norway and Sweden) and those further south. The former, despite having significantly lower HIV prevalence than the European average, have a markedly higher rate of criminalization. Sweden and Denmark, for example, have conviction rates of 6.12 and 4.66 per 1000, while the rates for France and Italy are 0.1 and 0.74 respectively.
There is a number of possible explanations for this increased resort to criminal law in Scandinavia compared with elsewhere (including higher levels of inter-personal trust, greater confidence in judicial institutions, and a tradition of robust public health laws), but whatever the causes are, it has resulted in concern among HIV activists and civil society organisations (CSOs) in the region, who have – over the past few years especially – mobilised in efforts to repeal and reform laws and / or constrain their enforcement.
Research Questions
This research project is concerned with the work of these activists and CSOs, and specifically with understanding:
- what their motivations for legal reform have been;
- how they have organised nationally and regionally to try and achieve that reform;
- how they have developed their policy agendas
- whether, and if so how, they have engaged and communicated with both (a) PLHIV and key groups especially vulnerable to HIV infection and (b) the wider population to achieve “buy in” and broader legitimacy for reform efforts;
- how they have engaged with policy makers, politicians, and government;
- the political, institutional and other barriers to reform; and
- what the results and consequences of reform efforts have been to date, and what they anticipate for the future.
Aims
These questions all focus on an attempt to understand better the ways in which civil society responds to the impact of law on PLHIV. By focusing on a region in which punitive law has been deployed disproportionately, and where there established and comparatively well-resourced organisations, the research will contribute to our understanding of how expert groups committed to HIV prevention and human rights protection mobilise in the face of what they perceive as a threat to the constituents whose interests they represent. In so doing, the research will provide original data about the dynamics of health activism and the impact of activism on law and policy. Two further aims are to provide a practical resource of value to HIV activists and organisations elsewhere in Europe and a record that will contribute to the oral history of the HIV epidemic in Europe.Matthew Weait’s Background in the Area
I have worked and published in the field of law and HIV for more than a decade, specifically in the area of criminalization. For the past five years I have been involved at an international level with work on this subject: as a consultant for the EU Agency for Fundamental Rights, HIV in Europe, WHO Europe and UNAIDS, and as an invited expert at their criminalization policy development meetings, and most recently as a member of the Technical Advisory Group for the UNDP-led Global Commission on HIV and the Law. As a contributor to the policy development work of these organisations I have contributed to a number of important outputs, including a report on a rights-based approach to HIV in the EU (2010), the WHO Europe Technical Consultation on the Criminalization of HIV and other STIs (2007), and the UNAIDS Criminal Law and HIV Policy Brief (2008). For the Global Commission I was commissioned to write the Report on Criminalization of HIV Transmission and Exposure across the world. In October 2011 I was invited to give evidence to the Working Group of the Norwegian Law Commission that has been tasked to consider reform of its transmission and exposure laws, and in November 2011 I gave a plenary lecture on this subject at an international sexual health conference in Stockholm. In addition to this policy work I have published widely in peer-reviewed journals, both alone and with colleagues in other disciplines, and have written a monograph on the subject. All of this has impressed on me the importance both of understanding the dynamics of law reform in the field, and of developing a stronger, empirically grounded, evidence base. I see this project as a small, but significant, attempt to do both these things.Methodology
The research will be qualitative, based primarily on semi-structured interviews and supplemented by policy and other documentation produced by respondents and their organisations. The analysis will be undertaken using grounded theory (Glaser and Strauss, various dates), coding the data in order to generate concepts and categories so that a theory of law reform initiatives in this particular area may be developed. It is also intended that the original interviews be made available (subject to participant consent) as a non-academic activist resource.Relevance of the Project to Policy and Practice
As explained above, the project is highly relevant to policy and practice and will make an original and significant contribution to our understanding of the ways in which HIV activists feed into and influence (or fail to influence) law reform. In using the data to develop a theory of law reform efforts in the particular area of HIV criminalisation it is hoped that the research will provide a resource of use to researchers interested in health policy making and activist participation more generally; in making available the raw interview material as audio, it is hoped that the research project will provide a resource for activists in other countries and regions who wish to learn about the experience of the Scandinavian peers.
Sweden: Campaign to change draconian, punitive policies for PLHIV aiming for Government review
In Sweden, the Communicable Diseases Act requires people with diagnosed HIV to disclose in any situation where someone might be placed at risk and to also practise safer sex (which, in Sweden, means using condoms – the impact of treatment on viral load and infectiousness is not yet considered to be part of the safer sex armamentarium.)
But in Sweden you’re damned if you do (disclose) and damned if you don’t because Sweden is one of several countries in western Europe – including Austria, Finland, Norway, and Switzerland – where people with HIV can be (and are) prosecuted for having consensual unprotected sex even when there was prior disclosure of HIV-positive status and agreement of the risk by the HIV-negative partner. Sweden uses the general criminal law for these prosecutions of which there have been at least 40 – out of an HIV population of around 5,000.
And if you think the Swedes aren’t being overly harsh, then watch the harrowing documentary, ‘How Could She?’ about a young woman, Lillemore, who was in such denial that she did not tell anyone that she was HIV-positive (including the doctors who delivered her two children). Even though both children were born HIV-free, and no-one was harmed by her non-disclosure, following the break-up of her marriage, her ex-husband reported her to the authorities and she was sentenced to 2 1/2 years in prison.
Fortunately, most of these countries with overly-draconian policies towards people with HIV are well advanced in the process of examining (and hopefully, changing for the better) such laws and policies.
Norway has set up a special committee to examine whether its current law should be rewritten or abolished: its recommendations are due in May.
Switzerland is currently revising its Law on Epidemics, to be enacted later this year, and, according to my sources, the latest version appears to be mostly consistent with UNAIDS’ recommendations.
In 2010, Austria’s Ministry of Justice conceded that an undetectable viral load is considered a valid defence, even if they say individual judges can ignore their recommendation, although much more could still be done to remove the legal onus for HIV prevention on people with HIV.
And Finland has established an expert group on HIV/AIDS within the Finnish National Institute for Health and Welfare with the aim to ensure legislative reform, and address laws and polices that reinforce stigma and discrimination.
But Sweden – which has the most HIV-related prosecutions per capita of people with HIV in Europe (and probably the world) and that’s not including the 100+ more people with HIV who have been forcibly detained and isolated under the Communicable Diseases Act – is lagging behind, and continues to enforce its ‘human rights-unfriendly’ policies.
Fortunately, civil society is fighting back. In 2010, HIV-Sweden, RFSU (the Swedish Association for Sexuality Education) and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) began a three-year campaign to raise awareness and advocate against Sweden’s over-punitive HIV-related policies.
A recent conference held just before World AIDS Day put together by the campaign and attended by police, prosecutors and politicians highlighted the many human rights concerns over Sweden’s current laws and policies. I was honoured to be one of only two non-Swedes to speak at the meeting (which was held mainly in Swedish – so a big thank you to Elizabeth, my personal “whisper” translator) – you can see the agenda and download a copy of my presentation here.
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| Download Google translated version of full article here |
The meeting and associated campaign received a lot of press coverage, including the front page of the biggest circulation morning paper in Sweden on World AIDS Day.
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| Download ‘HIV, Crime and Punishment’ |
At the meeting, HIV Sweden, RFSL and RFSU launched an important new manifesto, ‘HIV, Crime and Punishment‘ that clearly explains what the problems are for people with HIV (and public health) in Sweden and asks for three actions from the Swedish Government:
- A review of Swedish law, including the Communicable Disease Act as well as the application of the criminal law to HIV non-disclosure, exposure and transmission.
- An endorsement by Sweden of the 2008 UNAIDS Policy Brief on the criminalisation of HIV transmission, which says that criminal prosecutions should be limited to unusually egregious cases where someone acted with malicious intent to transmit HIV, and succeeded in doing so.
- A renewed, clear focus of Sweden’s National HIV Policy on a human rights-based approach to HIV prevention, care, support and treatment, and sex education.
Let’s hope that Sweden’s policymakers take heed. After all, how can a country which supports UNAIDS’ global efforts, and is perceived to be a global champion for human rights around the world treat people with HIV in its own country as second class citizens?
Don’t think Sweden is that bad? Check out the 2005 case of Enhorn v Sweden at the European Court of Human Rights which found that Sweden had unlawfully isolated a man with HIV for a total of seven years, a violation of Article 5 § 1 of the Convention, ‘right to liberty and security of person’.
‘HIV is not a crime’ by Sean Strub
Regular readers may be familiar with the case of Nick Rhoades from Iowa, who was arrested, prosecuted and sentenced to 25 years in prison because he didn’t disclose he was HIV-positive during a one-night stand with another man, despite using condoms and having an undetectable viral load. Following intervention from human rights groups and HIV advocates, Nick’s 25 year sentence was eventually suspended, but he remains on parole and on the sex offenders list.
Nick is one of three courageous individuals who appear in the trailer for POZ Magazine founder, Sean Strub’s, ongoing documentary project ‘HIV is not a crime‘. Sean’s film will shed light on laws and prosecutions which treat people living with HIV as second-class citizens (Sean’s term is “viral underclass”) and which are informed by stigma, not science.
Sean and I share a common understanding that, especially in the United States, but not exclusively so, HIV criminalisation is having a serious negative impact on both human rights and public health. The high number of cases in the United States is primarily because many states are still enforcing outdated HIV-specific laws many of which were drafted earlier in the AIDS epidemic when HIV-related life expectancy was poor. Reflecting moral panic and poor understanding of HIV transmission risks, their impact is still very much felt today, as Sean’s film will show.
Sean’s documentary project could not have come at a more crucial moment, as efforts are underway on a federal level in the United States (and also on a state level including in Iowa) to modernise (or, ideally, totally repeal) these draconian laws. By focusing on the impact these laws have had on people who are often erroneously characterised by such laws – and the media – as vectors of the HIV epidemic, and even sometimes as “monsters”, and showing their vulnerability and humanity, Sean’s film should help explain in very personal and human terms why these laws are wrong and why they should be repealed.
Sean is looking for funding to complete the documentary (funders, please note!) and he also tells me in an email
I’m looking for additional people to interview, including those who have been prosecuted or are facing prosecution, as well as accusers, people who filed charges or considered filed charges and others. To date I have only interviewed Americans, but I am looking for people with criminalization experiences in other countries as well.
Next week, Sean and I (along with Nick and fellow documentary interviewee, Robert Suttle) will be attending the UNAIDS Programme Coordinating Board’s thematic on HIV and enabling legal environments in Geneva and then will be briefly in London on Friday 16th. If you have a story to tell and will be in Geneva or London next week (or indeed if you are living anywhere else in the world, bearing in mind that Sean is based in the United States) please contact Sean or leave a comment below (I moderate all comments before they are published and so this is simply a way to get in touch with me – I will forward messages to Sean).
Canada: Urgent – support the call for prosecutorial guidelines in Ontario
Canada is facing its most critical point in the history of criminalisation of HIV non-disclosure since the Supreme Court’s 1998 Cuerrier decision which found that not disclosing a known HIV-positive status prior to sex that poses a “significant risk” of HIV transmission negates the other person’s consent, rendering it, in effect, a sexual assault.
In February 2012, the Supreme Court will hear two cases – Mabior and ‘DC’ – that will re-examine whether Cuerrier remains valid in the light of inconsistent lower court decisions regarding what constitutes a “significant risk” of HIV transmission in the context of sexual transmission, especially when the person with HIV wears a condom and/or has an undetectable viral load due to effective antiretroviral therapy.
The main thrust of the arguments from both sides is that the “significant risk” test is unfair and should be reassessed. However, Manitoba’s Attorney General (who is appealing the Manitoba Court of Appeal’s decision to partially acquit Mr Mabior due to his using a condom or due to his undetectable viral load when not using a condom) is arguing in its appellants factum that the only fair legal test is whether or not a person with HIV disclosed before any kind of sexual contact, because figuring out whether the risk at the time was significant enough is too complicated. It also argues that such non-disclosure should be charged as aggravated sexual assault, which carries a maximum 14 year sentence for each episode of unprotected sex without disclosure.
Lindsay Sinese, in excellent recent blog post from The Court, examining both Mabior and DC as they head to the Supreme Court, highlights what is already problematic about attempting to prove non-disclosure in cases that are often based on he said/(s)he said testimony.
In the jurisprudence surrounding HIV criminalization, th[e DC] case reads like frustrating déja vu, exhibiting several characteristics common to many of the more than 130 people living with HIV who have been subject to criminal charges. Namely, the parties rarely agree on the facts of the case, particularly on whether or not the sexual intercourse in question was protected, how many times it occurred and under what circumstances. These critical facts obviously present significant obstacles with regards to proof and the situation devolves in a “he said, she said” scenario.
The inability to prove the key elements upon which the case turns leaves the outcome to be very unpredictable. As a result, the cases tend to hinge on the credibility of the parties, the determination is, at best, a loose science, and, at worst, an exercise in hunch-based guess work.
Another problematic factor in this realm of prosecution is that charges are frequently laid after the dissolution of a relationship. It could be argued that some of the complaints may be brought for vengeful and vexatious purposes. By leaving HIV positive people vulnerable to criminal prosecution, we are sanctifying the punishment of an already vulnerable group, and pushing this community further onto the fringes of society.
The greatest disappointment, however, is that Ontario’s Attorney General has joined with the AG’s of Manitoba and Quebec (where DC was tried) by obtaining intervener status.
In an application this week to the Supreme Court of Canada, the Office of the Ontario Attorney General asks to be granted intervener status in an upcoming high-profile case revolving around those living with the human immunodeficiency virus, which can lead to AIDS. It argues that the current legal standard the courts must meet has led to different interpretations across the country, resulting in “uncertainty and unfairness” in the Canadian legal system. To remedy this, the government argues that criminal liability should be based only on whether or not someone disclosed his or her HIV-status before engaging in sexual activity and not just on the safety risks they pose.
This is a major slap in the face to the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) campaign urging Ontario’s Attorney General to develop prosecutorial guidelines for Crown prosecutors handling allegations of HIV non-disclosure. The working group produced an excellent report in June 2011 which calls for restraint in HIV non-disclosure prosecutions and provides detailed legal and practice guidance covering general principles; bail; scientific/medical evidence and experts; charge screening; resolution discussions; sentencing; and complainant considerations. The report, available here, is a must-read for all advocates working in their own countries to obtain prosecutorial guidelines.
In a recent email, CLHE co-chairs Ryan Peck and Anne Marie DiCenso outline the problems they perceive with the promises made by the Ministry of the Ontario Attorney General’s and its current position as intervener.
In December 2010, Chris Bentley, the former Attorney General, promised to develop guidelines. Since then, the Ministry of the Attorney General has not informed CLHE when it will be honouring its commitment to develop prosecutorial guidelines, and has not responded to CLHE’s guideline recommendations. CLHE’s recommendations are at http://www.catie.ca/pdf/Brochures/HIV-non-disclosure-criminal-law.pdf.
It is particularly troubling that the Attorney General, after committing to develop guidelines, has filed materials at the Supreme Court of Canada calling upon the Court to rule that people living with HIV must disclose their HIV status before any sexual activity whatsoever, and that not disclosing should be prosecuted as an aggravated sexual assault, which is one of the most serious offences in the Criminal Code.
When asked about this position, former Attorney General, Chris Bentley, indicated that although the intervention materials advocate for the elimination of the current significant risk test, the Attorney General of Ontario has no intention of taking such a position at the Supreme Court of Canada.
It is vital that the Attorney General fulfill the promises made.
But, as of today, we have not received any guarantee from the new Attorney General, John Gerretsen, that the Ministry of Attorney General will amend its intervention materials and take the position that people living with HIV should not be prosecuted when there is no significant risk of HIV transmission.
The Ministry of the Attorney General has until December 20 to submit its final materials to the Supreme Court. While preparing the materials, the new Attorney General, John Gerretsen, needs to know that the community is mobilized and is watching him.
The most effective way to do this is for everyone who reads this post to endorse the call for guidelines. While the Ministry may care more about Ontarians signing the call, I have had it confirmed from my contacts at CLHE that signatures from other jurisdictions would be very helpful.
When you sign the call the following email (which you can personalise if you want) will be sent to the new Attorney General, John Gerretsen, urging him to develop guidelines by December 31, 2011.
Dear Minister Gerretsen,
I am writing to congratulate you on your new post as Attorney General, and to urge you to take action on an important issue.As you know, your predecessor, the Honourable Chris Bentley, committed in December 2010 to draft guidelines for criminal cases involving allegation of non-disclosure of sexually transmitted infections, including HIV.
I urge you to draft these much-needed guidelines by December 31, 2011. I also urge you to take into account the broad-based community input provided to the Ministry of Attorney General by the Ontario Working Group on Criminal Law and HIV Exposure (the Working Group). In spring 2011, the Working Group consulted over 200 people — people living with HIV/AIDS; communities affected by HIV; legal, public health, criminal justice and scientific experts; health care providers; and advocates for women’s rights in the context of sexual violence and the criminal justice system. In June 2011, the Working Group provided the Ministry with their Report and Recommendations based on these consultations.
I trust that you will draft guidelines by December 31, 2011, and that you will provide the Working Group and its constituents with an opportunity to review and provide input on this draft.
Guidelines are urgently needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner.
Please take action.
Punitive Economies: The Criminalization of HIV Transmission and Exposure in Europe
Last week, Professor Matthew Weait presented this excellent paper at The Future of European Prevention Among MSM Conference (FEMP 2011) in Stockholm, Sweden.
I’ll also quote from the introduction here, but the entire paper is a must-read, and can be dowloaded here.
The European region is suffering from an epidemic of criminalization. Across the continent, people living with HIV are being investigated, prosecuted, convicted and imprisoned for non-deliberate HIV exposure and transmission. It is an epidemic that is causing significant harm: not only directly – to the people who are being subjected to harsh and punitive responses – but indirectly, to efforts aimed at normalizing HIV and reducing stigma, to HIV prevention work, and to attempts to affirm the importance of shared responsibility for sexual health. It is an epidemic whose impact is felt especially by people who already experience particular social and economic exclusion and vulnerability. It is an epidemic that has created, based on UNAIDS HIV prevalence estimates for 2009, some 2.2 million potential criminals in Western and Central Europe. It is an epidemic that we have to respond to collectively, and which for we have to find a cure.
In this paper I will do three things. First, I will provide an overview of the scope, extent and distribution of criminalization in the region, and in doing so to emphasise the disparities that exist and the problematic consequences of these disparities for PLHIV. Second, I will discuss what I understand to be the reasons for criminalization, and its variation across countries. Third, and bearing in mind these reasons and variations, I will discuss some of the responses which civil society organisations and others have been making to criminalization, and at additional interventions we might consider exploring and developing.
The paper is especially timely given important developments in Switzerland and the Nordic countries, where law reform is ongoing in Denmark, Norway and Switzerland, and civil society advocacy moving towards law reform is taking place in Finland and Sweden.
One of the most interesting aspects of Prof. Weait’s paper is that he finds a correlation between attitudes towards interpersonal trust and the high per capita conviction rates in the five countries mentioned above, which helps explain why the criminal law’s approach to HIV in these countries focuses on public health rather than human rights.
These correlations between interpersonal trust and conviction rates in the region become even more interesting when we learn that, according to reliable empirical research, the Scandinavian countries have a lower fear of crime, are less punitive in their attitudes to those who commit crime, and – in general – have lower rates of imprisonment for convicted offenders than other countries. If this is the case, why would HIV transmission and exposure criminalization be so high?
My answer to this is tentative, but it seems plausible to suggest that the sexual HIV cases that get as far as court and a conviction are ones which are paradigm examples of breach of trust. It is not inconsistent for a society to have a lower than average generalised fear of crime, or lower than average punitive attitudes, and at the same time to respond punitively to specific experiences of harm, especially when that arises from a belief that the person behaving harmfully could have behaved otherwise and chose not to. Indeed, it seems entirely plausible that where there are high expectations of trust, breaches of trust (for example, non-disclosure of HIV status) are treated as more significant than where value in trust is low. Combine this with countries (such as those in Scandinavia) which are committed to using law to ensure public health, and which consequently are prepared to using it to respond to the risk of harm (HIV exposure), as well as harm itself (HIV transmission), and we can see why the pattern of criminalization appears to be as it is.
Denmark: HIV to be removed from Article 252, but new statute wording may re-criminalise non-disclosure without “suitable protection”
Denmark’s new Minister of Justice Morten Bødskov is now taking formal steps to remove references to HIV from Article 252 of the Danish Penal Code which means that, for the time-being, HIV exposure and transmission is decriminalised.
The news was released in a letter dated 8 November and provided to me by AIDS-Fondet (Danish AIDS Foundation).
That’s the good news. The not-so-good news is that the working group set up to examine whether or not there should be a new HIV-specific law is proposing new wording for a statute that would criminalise non-disclosure of known HIV-positive status, unless “suitable protection” is used for vaginal or anal intercourse.
Their recommendations will be considered during a consultation period which ends on 6 December 2011. Members of all branches of the criminal justice system are being consulted as well as HIV and human rights organisations.
Denmark prosecuted its first HIV-related criminal case in 1993, but the Supreme Court found in 1994 that the wording of the existing law (“wantonly or recklessly endangering life or physical ability”) did not provide a clear legal base for conviction. The phrase “fatal and incurable disease” was added in 1994, and HIV was specified in 2001. After at least 15 prosecutions, the former Minister of Justice suspended the law earlier this year due to concerns that it no longer reflected the realities of HIV risk and harm.
The working group has produced a 20 page memo which states that the legal basis for the current statute no longer exists and, therefore, it should be repealed. They particularly emphasise the increased life expectancy for people on antiretroviral therapy (ART) and conclude that HIV is no longer “fatal” (although it is still “incurable”).
The lifespan of a well-treated HIV-infected individual does not differ from the age and gender-matched background population, and…timely treatment is now as effective and well tolerated (i.e, usually without significant side effects) so that an estimated 85-90 per cent of patients can live a normal life, as long as they adhere to their treatment on a daily basis.
The memo then examines HIV-related risk (including the impact of ART on risk) and harm and highlights that it is the estimated 1000 undiagnosed individuals (out of an estimated total of 5,500 people with HIV in Denmark) that are more likely to be a public health concern.
It notes that using HIV as a weapon in terms of violent attacks with needles; rape; or sex with minors could still be an aggravating factor during sentencing under other, revelent criminal statutes. However, a 1994 Supreme Court ruling found that general criminal laws, such as those proscribing bodily harm or assault could not be applied to sexual HIV exposure or transmission.
The memo then presents arguments for and against a new statute. It argues that any new law should not proscribe ‘HIV exposure’, since it notes, the risks of HIV transmission on ART “are vanishingly small” and so it would be very difficult for any prosecutor to prove that someone was exposed to HIV under these circumstances.
Since ART is now considered to be effective as condoms in reducing HIV transmission risk, the working group considered whether it might be possible to only criminalise untreated people who have unprotected sex, but worry that proving that a person on ART was uninfectious at the time of the alleged act would be too difficult.
Similarly, although they consider the UNAIDS recomendation to only criminalise intentional transmission via non-HIV-specific laws, they were concerned that proving such a state of mind would be extremely difficult.
They conclude that if a new statute were to replace Article 252 it should criminalise non-disclosure unless “suitable protection” is used. (This potentially leaves it open to argue that ART as well as condoms could be considered “suitable protection.”) Their suggested wording is
§ x. Whoever has a contagious, sexually transmissible infection which is incurable and requires lifelong treatment and has intercourse with a person without informing them of the infection, or using suitable protection, is punishable by a fine or imprisonment for up to 2 years.
They note, however, that since the harm of HIV is reduced due to the impact of ART that the current maximum sentence of 8 years in prison should be reduced to 2 years and “the normal penalty should be a fine or a short (suspended) term of imprisonment.”
Although they are not necessarily recommending this new statute, the working group warns that “decriminalisation…may have unintended, negative consequences” and that public health and community based HIV organisations alike should ensure that health education about HIV and how to avoid it continues unabated because “it is important to send the message that HIV is still a disease that must be taken seriously.”