Update May 31st: A total of 122 civil society organisations from around the world have signed the letter which was delivered to the Danish Minister of Justice and the Danish Minister of Health in mid-May. Thank you to everyone who signed!
They are asking the Government to consider only making intentional transmission of a serious communicable disease a criminal offence, as recommended by UNAIDS, and to focus instead on supporting people with HIV (diagnosed and, even more importantly for public health, undiagnosed) to access comprehensive prevention, counselling, testing, treatment, care and support services.
What happens in Denmark could have a profound effect on policy, not only in neighbouring Nordic countries – where law reform and other HIV criminalisation policy discussions are also taking place this year – but all around the world.
To parapahrase South Africa’s Justice Edwin Cameron, who argued in his excellent 2009 article for Norwegian newspaper, Dagbladet, “that by applying its own discriminatory legislation, Norway in effect exports stigma,” by abolishing its own HIV-specific law, Denmark in effect would lead the world by exporting rational, public health-based policy.
Full text of the introductory remarks and sign-on letter from AIDS-Fondet (Danish AIDS Foundation) is below. Please sign before 29th April 2011 by emailing laura@aidsfondet.dk (and include the NAME OF YOUR ORGANISATION and COUNTRY) and distribute to your networks locally, nationally and globally.
Dear non-governmental and community-based organisations, national and regional networks working on HIV and AIDS,
We would like to share with you the good news that last month the Danish Justice Minister suspended Article 252 of the Danish Penal Code used to prosecute people living with HIV for ‘wanton or reckless’ exposure or transmission of HIV. This is the only criminal statute in Western Europe that singles out HIV as “a fatal and incurable disease.”
The law is undergoing revision and a working group is currently considering whether to amend, or totally rewrite, Article 252.
To help this process along, the Danish AIDS Foundation is seeking your endorsement of a letter (see below in bold and/or download here) to the Danish Minister of Justice and the Danish Minister of Health who are leading the working group comprising representatives from the Ministry of Interior, Ministry of Health, the National Board of Health and the Prosecutor General.
By signing, you help:
in congratulating the Ministers on their recent decision to suspend the Danish Penal Code that criminalises HIV exposure and transmission
to ensure that during the revision process the Danish Government takes into due consideration whether the particular section singling out HIV should exist in the Penal Code at all.
It is our hope that a successful revision of the Danish Penal Code will allow for other countries to follow suit.
If your organization wishes to endorse the letter below, please send an email to laura@aidsfondet.dk and include the NAME OF YOUR ORGANISATION and COUNTRY before 29th April 2011.
Your help is very much appreciated!
Dear Minister of Justice, Mr. Lars Barfoed and Minister of Health, Mr. Bertel Haarder
We, the undersigned, non-governmental and community-based organisations, national and regional networks working on HIV and AIDS congratulate you on your wise decision to suspend section 252 (2) and (3) of the Danish Penal Code on HIV and AIDS.
The remarkable progress in treatment options for people living with HIV that allows for the possibility of a normal life expectancy, and greatly reduces the possibility of exposing others to HIV is certainly a good reason to reconsider the law on HIV and AIDS.
However, in your important work on the revision of the Danish law, we strongly urge you to consider whether the particular section in the Penal Code that relates specifically to HIV exposure or transmission should exist at all. HIV exposure or transmission should not be singled out for special consideration as a criminal offence but should be treated in the same manner as other serious communicable diseases.
Punitive laws on HIV and AIDS undercut basic HIV prevention and sexual health messages and are ineffective in reducing the spread of HIV. Since HIV mainly spreads from persons not aware of their HIV status, such laws only fuel ignorance, fear, stigma and discrimination against people aware they are living with the virus. We strongly believe such laws are counterproductive since they lessen the likelihood that individuals will learn their HIV status and access treatment.
In our opinion, consistent with rational, public health-based policy, only intentional transmission of a serious communicable disease should be criminalised. In addition, we strongly suggest that the Danish Government support efforts that emphasise shared responsibility for HIV prevention and the importance of providing comprehensive prevention and care services for people living with HIV to help reduce the risk of transmission to others.
Yours sincerely,
US: Coalition of Public Health and Legal Experts Urges Rational Response to Prosecution of People Living with HIV
(New York, April 27, 2011) — The Positive Justice Project, a coalition of legal and public health experts that represent people living with HIV, is speaking out against sensationalist media coverage of criminal charges that have been brought against an HIV-positive African American man in Buffalo.
Darryl Fortner, 20, who has no prior criminal record, has been charged with reckless endangerment for allegedly failing to disclose his HIV status to his sexual partners.
The Positive Justice Project urges journalists to consider the following in their coverage.
A wide range of health and human rights organizations, including the United Nations High Commissioner for Human Rights, have condemned the criminal prosecution of people living with HIV for not disclosing their status. While these prosecutions often seem to protect the public health, they actually undermine public health initiatives by discouraging testing and fueling stigma. They also put HIV-positive people at high risk of unjust prosecution. President Obama’s own National HIV/AIDS Strategy, released in 2010, questions the efficacy of such laws and calls for a comprehensive review of them.
“Rushing to judgment and demonizing a young black man on the basis of his HIV status has a horrible impact not only on people who already are diagnosed with HIV, but on all of those in my community who are afraid to get tested,” said Kali Lindsey, a public policy expert at Harlem United and a person living with HIV. “No one is going to get tested for HIV if they think that knowing their status will land them in jail.”
Fortner’s arrest is one in a long line of cases across the country where HIV-positive persons, often African American, are facing criminal charges and disproportionately long sentences for otherwise-legal behavior on the basis of their HIV status. Intent to transmit or intent to expose others to HIV is rarely–if ever–a consideration in these cases, which typically turn into a credibility battle in which the person who has first discovered he or she is HIV positive is assumed to be dishonest.
On Wednesday, April 20, Fortner was charged with one count of reckless endangerment for allegedly not disclosing his HIV status prior to engaging in sexual conduct. [He now faces four reckless endangerment charges.]
Journalists should keep in mind that to be charged under reckless endangerment in New York, one must have presented a “grave risk of death” to another person. HIV is no longer considered a death sentence, but rather a chronic disease.
“These laws and prosecutions continue to occur because people incorrectly believe that HIV is quickly and invariably fatal and as such should be treated differently than other sexually transmitted infections,” said Vanessa Johnson, Deputy Executive Director of the National Association of People with AIDS. “That’s just not the case. And until legislators, law enforcement officials, and prosecutors understand HIV in the 21st-century, these miscarriages of justice will continue to happen all over the country.”
### **** The POSITIVE JUSTICE PROJECT is the first coordinated national effort in the United States to address HIV criminalization, and the first multi-organizational and cross-disciplinary effort to do so. HIV criminalization has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission.
The POSITIVE JUSTICE PROJECT has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the Henry van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the POSITIVE JUSTICE PROJECT working groups, email: pjp@hivlawandpolicy.org
UNAIDS announces new project examining “best available scientific evidence to inform the criminal law”
A new project announced yesterday by UNAIDS will “further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health.”
I’m honoured to be working as a consultant on this project, and although I can’t currently reveal any more details than in the UNAIDS article (full text below), suffice to say it is hoped that this project will make a huge difference to the way that lawmakers, law enforcement and the criminal courts treat people with HIV accused of non-disclosure, alleged exposure and non-intentional transmission.
The UNAIDS article begins by noting some positive developments previously highlighted on my blog, including Denmark’s suspension of its HIV-specific law. It’s not too late to sign on to the civil society letter asking the Danish Government to not to simply rework the law, but to abolish it altogether by avoiding singling out HIV. So far, well over 100 NGOs from around the world have signed the letter.
The article also mentions recent developments in Norway. In fact, the UNAIDS project is funded by the Government of Norway, which has set up its own independent commission to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people who are alleged to have exposed others, to, and/or transmitted, HIV. It will present its findings by October 2012.
As well as highlighting some very positive recent developments in the United States – the National AIDS Strategy’s calls for HIV-specific criminal statutes that “are consistent with current knowledge of HIV transmission and support public health approaches” and the recent endorsement of these calls by the National Alliance of State and Territorial AIDS Directors (NASTAD) – it also focuses on three countries in Africa.
Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.
I’d like to add a few more countries to the “positive development” list.
We believe that the use of criminal law in cases of HIV non-disclosure must be compatible with broader scientific, medical, public health, and community efforts to prevent the spread of HIV and to provide care treatment and support to people living with HIV. While criminal prosecutions may be warranted in some circumstances, we view the current expansive use of criminal law with concern.
We therefore call on Ontario’s Attorney General to immediately undertake a process to develop guidelines for criminal prosecutors in cases involving allegations of non-disclosure of HIV status.
Guidelines are needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner. The guidelines must ensure that decisions to investigate and prosecute such cases are informed by a complete and accurate understanding of current medical and scientific research about HIV and take into account the social contexts of living with HIV.
We call on Ontario’s Attorney General to ensure that people living with HIV, communities affected by HIV, legal, public health and scientific experts, health care providers, and AIDS service organizations are meaningfully involved in the process to develop such guidelines.
As well as providing an extensive and detailed overview regarding the current (and past) use of criminal and public health laws in its eight states and territories, it also provides the latest data on number, scope and demographics of prosecutions in Australia.
There have been 31 prosecutions related to HIV exposure or transmission in Australia over almost twenty years. Of those, a number have been dropped pre-trial, and in four cases the accused has pleaded guilty. All those charged were male, except for one of two sex workers (against whom charges were dropped pretrial in 1991). In cases where the gender of the victim(s) is/are known, 16 have involved the accused having sex with female persons (one of those cases involves assault against minors) and 10 involved the accused having sex with men. This suggests that heterosexual men, who constitute only about 15% of people diagnosed with HIV, are over-represented among the small number of people charged with offences relating to HIV transmission. Further, men of African origin are over-represented among those prosecuted (7 of 30), given the small size of the African-Australian community.
It then systematically examines, in great detail, the impact of such prosections in Australia.
These include:
HIV-related prosecutions negate public health mutual responsibility messages
HIV-related prosecutions fail to fully consider the intersection of risk and harm
HIV-related prosecutions ignore the reality that failure to disclose HIVstatus is not extraordinary
HIV-related prosecutions reduce trust in healthcare practitioners
HIV-related prosecutions increase stigma against people living with HIV
HIV-related prosecutions are unacceptably arbitrary
HIV-related prosecutions do not decrease HIV transmission risks
HIV-related prosecutions that result in custodial sentences increase the population of HIV-positive people in custodial settings
It notes, however, that
There is a narrow category of circumstances in which prosecutions may be warranted, involving deliberate and malicious conduct, where a person with knowledge of their HIVstatus engages in deceptive conduct that leads to HIV being transmitted to a sexual partner. A strong, cohesive HIV response need not preclude HIV-related prosecutions per se. Further work is required by those working in the areas of HIV and of criminal law:
To consider what circumstances of HIV transmission should be defined as criminal;
To define what measures need to be put in place to ensure that prosecutions are a last resort option and that public health management options have been considered; and
To ensure those understandings are part of an ongoing dialogue that informs the development of an appropriate criminal law and public health response.
That’s exactly the kind of policy outcome that UNAIDS is hoping for.
In the meantime, AFAO suggests some possible strategies towards policy reform. Their recommendations make an excellent advocacy roadmap for anyone working to end the inappropriate use of the criminal law.
Their suggestions include:
Enable detailed discussion and policy development
Develop mechanisms to learn more about individual cases
Prioritise research on the intersection of public health and criminal law mechanism, including addressing over-representation of African-born accused
Work with police, justice agencies, state-based agencies and public health officials
Improve judges’ understanding of HIV and work with expert witnesses
Work with correctional authorities
Work with media
I truly hope that the recent gains by advocates in Australia, Canada, Denmark, Guinea, Norway, Togo, Senegal and the United States is the beginning of the end of the overly broad use of the criminal law to inappropriately regulate, control, criminalise and stigmatise people with HIV in the name of justice or public health.
The full UNAIDS article is below. I’ll update you on the project’s progress just as soon as I can.
Countries questioning laws that criminalize HIV transmission and exposure
26 April 2011
On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.
A working group has been established by the Danish government to consider whether the law should be revised or abolished based on the best available scientific evidence relating to HIV and its transmission.
This development in Denmark is not an exception. Last year, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people transmitting HIV.
In the United States, the country with the highest total number of reported prosecutions for HIV transmission or exposure, the National AIDS Strategy adopted in July 2010 also raised concerns about HIV-specific laws that criminalize HIV transmission or exposure. Some 34 states and 2 territories in the US have such laws. They have resulted in high prison sentences for HIV-positive people being convicted of “exposing” someone to HIV after spitting on or biting them, two forms of behaviour that carry virtually no risk of transmission.
In February 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD), the organization representing public health officials that administer state and territorial HIV programmes, expressed concerns about the “corrosive impact” of overly-broad laws criminalizing HIV transmission and exposure. The AIDS Directors called for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.
Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV. Best available scientific evidence to inform the criminal law
These developments indicate that governments are also calling for a better understanding of risk, harm and proof in relation to HIV transmission, particularly in light of scientific and medical evidence that the infectiousness of people receiving anti-retroviral treatment can be significantly reduced.
To assist countries in the just application of criminal law in the context of HIV, UNAIDS has initiated a project to further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health. The project, with support from the Government of Norway, will focus on high income countries where the highest number of prosecutions for HIV infection or exposure has been reported.
The initiative will consist of two expert meetings to review scientific, medical, legal and human rights issues related to the criminalization of HIV transmission or exposure. An international consultation on the criminalization of HIV transmission and exposure in high income countries will also be organized.
The project will further elaborate on the principles set forth in the Policy brief on the criminalization of HIV transmission issued by UNAIDS and UNDP in 2008. Its findings will be submitted to the UNDP-led Global Commission on HIV and the Law, which was launched by UNDP and UNAIDS in June 2010.
As with any law reform related to HIV, UNAIDS urges governments to engage in reform initiatives which ensure the involvement of all those affected by such laws, including people living with HIV.
Countries questioning laws that criminalize HIV transmission and exposure
On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.
US: State public health officials condemn ‘stigmatising, harmful’ HIV-specific laws
NASTAD is a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US.
Its motto is: ‘Bridging Science, Policy, and Public Health’.
The message of their statement is simple: repeal these laws because
HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV.
In order to work towards the goal of repealing laws that create HIV-specific crimes or increased penalties for persons who are HIV-positive and convicted of criminal offences, NASTAD will
advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.
Further, NASTAD encourages its members to:
Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.
Todd Heywood of the Michigan Messenger reports that US HIV advocates – including the National Association of People with AIDS (NAPWA) and the Positive Justice Project’s Senior Advisor, Sean Strub – have warmly welcomed NASTAD’s statement. Read his report at the Michigan Messenger here.
NATIONAL HIV/AIDS STRATEGY IMPERATIVE: FIGHTING STIGMA AND DISCRIMINATION BY REPEALING HIV-SPECIFIC CRIMINAL STATUTES
The National Alliance of State and Territorial AIDS Directors (NASTAD), the organization which represents the public health officials that administer state and territorial HIV/AIDS and adult viral hepatitis prevention and care programs nationwide is gravely concerned about the corrosive impact of sustained stigma and discrimination on state, federal and local efforts to combat HIV/AIDS in the United States. The National HIV/AIDS Strategy (NHAS) provides an unprecedented strategic blueprint for reducing HIV/AIDS incidence through the scale-up of interdisciplinary, impactful prevention approaches. NASTAD acknowledges that the NHAS is not a magic bullet; however, the NHAS’ central vision of the U.S. becoming “a place where new HIV infections are rare” cannot be realized until the nation aggressively responds to the core of the matter: pervasive and unmitigated stigma and discrimination against people living HIV/AIDS that diminishes our best efforts to combat one of the greatest public health challenges of our time.
As a member of the Positive Justice Project, a coordinated national effort to address “HIV criminalization” statutes – laws that create HIV-specific crimes or which increase penalties for persons who are HIV positive and convicted of criminal offenses – NASTAD supports efforts to examine and support level-headed, proven public health approaches that end punitive laws that single out HIV over other STDs and that impose penalties for alleged nondisclosure, exposure and transmission that are severely disproportionate to any actual resulting harm. Steps identified to reach this goal in the Federal Implementation Plan include step 3.3, Promote public health approaches to HIV prevention and care which states that “state legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to screening for, preventing and treating HIV.” In addition, step 3.4, Strengthen enforcement of civil rights laws requires an examination and report by the Department of Justice on HIV-specific sentencing laws and implications for people living with HIV.
HIV criminalization has often resulted in egregious human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty- four states (34) and two (2) U.S. territories explicitly criminalize HIV exposure through sex, shared needles or, in some states, exposure to “bodily fluids” that can include saliva. Examples include:
A man with HIV in Arkansas was sentenced to 12 years (and must register as a sex offender after release) when he failed to disclose his status with his girlfriend and another woman – both women tested negative;
A man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom;
A woman with HIV in Georgia, who was sentenced to eight years imprisonment for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV positive status.
In none of the cases cited was HIV transmitted. In fact, most prosecutions are not for transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing stories about verbal consent that are nearly impossible to prove.
HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV. NASTAD members commit to examining existing public health policies related to HIV criminalization that may exacerbate stigma and discrimination and lessen the likelihood that individuals will learn their HIV status. NASTAD members will also continue to emphasize the importance of providing comprehensive prevention and care services for HIV positive individuals to help reduce the risk of transmission to others. In conjunction with new and existing partners, our members also pledge to:
Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.
NASTAD will continue to advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.
Approved by NASTAD’s Executive Committee: February 2011
Denmark: Justice Minister suspends HIV-specific criminal law, sets up working group
Denmark’s Justice Minister Lars Barfoed has today suspended Article 252 of the Criminal Code – the so-called ‘HIV law’ – pending an inquiry by a government working group to consider whether the only HIV-specific law in Western Europe should be revised or abolished.
The move was announced today in a press release by AIDS-Fondet (AIDS Foundation) and covered in the gay magazine, Out and About. (Both of these are in Danish, and so I’m relying primarily on Google Translate, although colleagues in Denmark have also been in touch to tell me the exciting news.)
Denmark prosecuted its first 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.
According GNP+’s Global Criminalisation Scan here have been at least 18 prosecutions: at least one failed due to the accused committing suicide. At least ten involved non-Danish nationals, including seven people of African origin. At least eleven convictions for either sexual HIV exposure or transmission are reported. The maximum prison sentence is eight years.
Today’s announcement came about as a result of a Parliamentary question from opposition Unity MP, Per Clausen on behalf of the Parliamentary Legal Committee.
“The Minister should state whether the Ministry [of Justice] will consider changing or eliminating the special clause in the legislation that criminalises [HIV-positive individuals for] unprotected sex with uninfected [individuals] in light of the significantly improved treatment options for HIV-positive people, in particular since treatment is able to reduce the risk of infection to [near] zero.”
In his reply, Justice Minister Lars Barfoed explains the history of the legislation and then quotes the Health Protection Agency about HIV ‘risk’ and ‘harm’.
“Modern combination therapy reduces HIV in the blood by more than 99% during the first weeks of treatment, whereby patients’ general condition improves. The strongly reduced amount of HIV in blood and tissue fluids also greatly reduces the risk of transmission from an HIV-positive person on antiviral therapy. This greatly reduced risk is difficult to quantify but considering the risk to be near zero is a theory that some doctors have put forward, but there is no national or international consensus that about this…The life-expectancy of someone with HIV is no different from the age- and gender-matched background population. HIV is, in other words, not in itself fatal if treated in time; medication taken regularly; and there are otherwise no complications from other diseases, etc. Timely treatment is now so effective and well tolerated, that 85-90% of patients can live normal lives if they take their medication daily. It is the 5-10% of patients who are diagnosed late who still experience a substantial excess mortality and morbidity. [However] HIV is still incurable.”
He goes on to say that the law as it is currently written – casting HIV as a life-threatening condition and criminalising unprotected sex by a person with HIV – appears to be obsolete and that the working group must consider whether to amend, or totally rewrite, Article 252.
The working group will comprise Justice Minister Barfoed and Interior Affairs and Health Minister Bertel Haarder with representatives from the Ministry of Interior, Ministry of Health, the Health Protection Agency and the Prosecutor General. It is believed they will come to a conclusion later this year. (Update Feb 22: My contact at AIDS-Fondet tells me this process will take place much sooner, within the next two months.)
In their press release AIDS-Fondet notes that it has been working on changing the law for years and so this development is very welcome.
We hope this suspension is the beginning of the end of the so-called HIV Criminal Law. This criminal provision is in itself a barrier to prevention, and there has also long been a need for the improved treatment of HIV-people to be reflected in the Penal Code, says Henriette Laursen, AIDS-Fondet’s director.
Today I’m adding a new label to my blog – political ignorance – inspired by two scary, crazy, and dangerous events in as many weeks.
On Tuesday, Montana Representative Janna Taylor (a Republican, of course) testified in favour of Montana keeping the death penalty by citing the example of the most heinous, murderous crime she could think of – prisoners with HIV aiming saliva and/or blood-soaked paper “blow darts” at prison guards in an attempt to kill them.
Yesterday, the video of Rep. Taylor’s comments, originally posted on YouTube by shitmyrepsaid went viral throughout the US bloggersphere – from Montana bloggers Don Pogreba and D Gregory Smith to more mainstream gay sites, Towleroad and Queerty.
[Update 11 February: LGBT health blog, Crowolf, features an email response from Rep. Taylor that states:
I have tried to answer every email, even the ones that were not professional, as you worded it. My words were very poorly chosen, and I apologize for them. Montanans with HIV are simply people living with a virus. I was intending to illustrate that there are scenarios we cannot currently conceive of that may warrant the death penalty, and to remove it from the available options for punishment at this time would be misguided. HIV transmission was not an appropriate example. Again, I sincerely apologize for my inappropriate and inelegant statement, and I encourage all Montanans to become better educated about HIV.
It’s all well and good to respond to individual emails, but there’s nothing yet on Rep. Taylor’s own website making her HIV u-turn clear to her constituents and rest of the America.]
The idea that HIV could be transmitted in this way, and that this could be considered not just murderous intent, but worthy of the death penalty, is a point of view so dripping in HIV-phobic ignorance that at first I thought it wasn’t worth blogging about. After all, it’s so scarily out-of-step with science that surely no-one would take her comments seriously. Why give her poisonous ideology any further oxygen?
But during a lengthy email discussion yesterday with Sean Strub, senior advisor to the Positive Justice Project (PJP) and Catherine Hanssens, executive director of the Centre of HIV Law and Policy which hosts the PJP, I was persuaded that this lawmaker’s ignorance provided an excellent opportunity to highlight exactly how HIV-related ignorance plays its part in the further stigmatisation – and criminalisation – of people with HIV.
More of that in a moment.
Now this wasn’t the only recent case of a US politician furthering HIV-related stigma in the name of ‘justice’. Just last week, as highlighted in my blog post here, Nebraska State Senator Mike Gloor introduced a bill into the Nebraska State Legislature that would especially criminalise people with HIV (and viral hepatitis) who assaulted a peace officer through body fluids – notably by spitting, or throwing urine at them. (Neither of these risk HIV exposure.)
In both cases, PJP reacted swiftly to the threat. They worked closely with advocates in Nebraska to fight against the proposed body fluids assault bill and despite local media coverage that appeared to suggest strong support for the bill, local advocates reported (in a private email to the various PJP workgroups – full disclosure, I’m a member of the media workgroup) that because of opposition testimony from ACLU-NE and Nebraska AIDS Project, good questions were raised by some Senators on the committee that may lead to them to seriously consider blocking this bill’s passage.
And last night, PJP put out a press release that highlights Rep. Taylor’s “ignorance in the first degree”.
When HIV-related ignorance and stigma emanates from the mouths of politicians and lawmakers, this becomes state-sponsored ignorance and stigma – the most dangerous kind, the kind that can lead to HIV-specific criminal laws, or provisions that turn misdemeanours into felonies resulting in significantly longer sentences for people living with HIV than those without.
Treating people with HIV as potential criminals when in fact we pose no real threat with the kind of behaviour politicians believe is ‘dangerous and criminal’, takes away our human and civil rights and furthers the public’s and media’s perception that people with HIV are something to be feared or hated.
PJP’s powerful and co-ordinated response is the kind of advocacy in action that needs to be replicated wherever the rights of people with HIV are threatened by ignorance and stigma.
The full text of the press release is below. It can also be downloaded as a pdf here.
New York, February 9, 2010 – Leading public health officials and advocates for people with HIV responded swiftly to news that a Montana state legislator, while testifying in favor of retaining the state’s death penalty statute, suggested that prisoners with HIV make paper “blow darts”, put their blood or saliva on them and throw them at prison guards in an attempt to kill them.
According to the federal Centers for Disease Control, HIV is not transmitted by saliva, and HIV in blood dies quickly after being exposed to air. HIV-infected blood does not survive outside the body long enough to cause harm, unless it penetrates mucus membranes.
The Positive Justice Project, a program of the New York-based Center for HIV Law & Policy, is a coalition of more than 40 public health, civil liberties and HIV/AIDS organizations combating HIV criminalization and the creation of a “viral underclass”; they oppose laws that treat people with HIV different from how those who do not have HIV, or who do not know their HIV status, are treated.
The Center’s executive director, Catherine Hanssens, said “Rep. Janna Taylor’s remark is ignorance in the first degree. Quite frankly, it is typical of the ignorance we had to deal with decades ago, early in the epidemic, when little was known about how the virus was transmitted. It is astonishing that an elected official today could be so fundamentally uninformed.”
Julie M. Scofield, executive director of the National Association of State and Territorial AIDS Directors (NASTAD), said “My plea to Rep. Taylor and legislators at all levels concerned about HIV is to do your homework, talk with public health officials and get the facts. Spreading fear about HIV transmission will only set us back in the response to the HIV/AIDS epidemic in Montana and every other state in the U.S.”
Other experts from Montana and national organizations also commented on Rep. Taylor’s remarks:
“Ms Taylor’s statement just shows the need for greater support and funding for HIV education and prevention in the State of Montana. Unfortunately, misinformation such as this is all too prevalent, leading to pointless discrimination and myth-based fears and policies. After 30 years of dealing with HIV, the public should be much better informed about its transmission. No wonder HIV infection rates haven’t stopped.”
— Gregory Smith, co-chair of the Montana HIV/AIDS Community Planning Group, a licensed mental health counselor and a person living with HIV
“I am disturbed and disappointed to hear such misinformation coming from a local government official, but sadly I am not especially surprised. As we enter the 30th year of this worldwide epidemic I am frequently reminded of the need for continued education and outreach, the facts are still not clearly understood by the general masses. Perhaps if we were more willing as a society to discuss more openly the risk behaviors that transmit the virus we would not find ourselves responding to such an insensitive and false statement.”
“HIV infected blood cannot infect someone through contact with intact skin or clothing if the skin underneath is intact.”
— Kathy Hall, PA-C, retired American Academy of HIV Medicine-certified HIV Specialist, Billings, MT
“The comments made by the Montana Legislator really demonstrate total ignorance about how HIV is transmitted. If elected officials don’t understand the basic facts, how can we expect young people and those at greatest risk to understand them?”
— Frank J. Oldham, Jr., President, National Association of People with HIV/AIDS, napwa.org
“This is an example of people with HIV, especially those who are incarcerated, being stigmatized and used as fear-fodder by politicians whose ignorance and quickness to demonize people with HIV outweighs common sense and two minutes of Google research. Even when someone is exposed to HIV, a 28-day course of anti-HIV drugs used as post-exposure prophylaxis is effective in preventing HIV infection. It also isn’t a death sentence; those who acquire HIV today and have access to treatment generally don’t die from AIDS.”
— Sean Strub, founder of POZ Magazine, a 30 year HIV survivor and senior advisor to the Positive Justice Project.
**** The Positive Justice Project is the first coordinated national effort in the United States to address HIV criminalization, and the first multi-organizational and cross-disciplinary effort to do so. HIV criminalization has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission.
The Positive Justice Project has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the Positive Justice Project working groups, email: pjp (at) hivlawandpolicy.org
US: Dying daughter released from Florida jail following spitting conviction – UPDATE
The Florida Parole Board met in an emergency meeting this morning to hear Betsie’s case. The board approved a conditional medical release in a 2 to 1 vote; Betsie is being released to a Miami hospice to live out her final weeks of life surrounded by her family.
Original post: December 24 2010 As we focus on friends and family over the Holiday period, spare a thought for the many people with HIV in prison convicted of ‘crimes’ that harmed no-one except themselves.
In particular think of Betsie Gallardo, 27 – convicted in 2008 of battery on an officer and resisting arrest and sentenced to five years in prison because she is HIV-positive and spit on a police officer during a traffic accident investigation – who is dying of cancer. (Her case went unreported at the time, suggesting that such heinous miscarriages of justice are even more prevalent than we currently think.)
Her mother, Jessica Bussert, writes on the Bilerico blog
Betsie has been sentenced to die in prison. Why? Because she was born with AIDS and spit on a cop. It was definitely a stupid action, but was it one that warranted that she should die locked up, alone, and away from her family?
Bil includes many details of Betsie’s heart-breaking case, including the full letter from her mother, and information on how to help. His call to action is one that I hope my blog readers will follow:
Please take a moment to share this post on Facebook, tweet it, e-mail it or just spread it around via word of mouth. And when you’ve done that, do the most important part – contact the Executive Clemency Commission with the information below.
NOTE: When calling the four members of the Executive Clemency Commission, please reference the following: Inmate Name: Betsie Gallardo at Broward Correctional Institution Inmate DC#: Y42277
Please tell them: “It is already a crime that Betsy has spent time in jail for HIV-stigma and discrimination. I urge Florida’s Executive Clemency Commission to grant Betsy Gallardo a medical clemency to allow her to go home to her family and die with dignity and respect.
The Swiss Government has ignored expert recommendations to decriminalise everything but intentional HIV exposure or transmission following a consultation on changing Article 231 of the Swiss Penal Code, according to a strongly worded press release from Groupe sida Genève issued yesterday.
At the International AIDS Conference in Vienna earlier this year, the Swiss Federal Commission for AIDS-related issues – the Swiss statement people – described how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. (Download the pdf here)
The law has only ever been used to prosecute people with HIV. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law.
The Swiss Federal Commission for AIDS-related issues issued a statement in September 2010 (available in English here) that stated:
[Current Swiss] legal practice is in blatant contradiction to the tried and tested Swiss Aids policy held by broad social consensus. Accordingly, the FCAI calls for the following requirements from the lawmakers and the practitioners of criminal law (public prosecution and judicial authorities):
1. Public prosecution and judicial authorities have to take into account the scientific findings on the infectiousness of HIV-positive persons under successful therapy (FCAI statement 2008). Persons, who are not considered to be infectious according to the FCAI criteria, shall not be punished. Any processes are to be stopped and previous sentences, when needed, are to be revised.
2. Also for HIV-positive persons, whose virus count is not yet under the detection limit, the risk of transmission is very low. The courts are therefore advised not to undertake hastily a possible deliberate action. The highest court of law of the Netherlands, in a leading decision in 2005, made an exemplary judgement in this regard.
3. The legislative body has to amend Art. 231 SPC such that amicable unprotected sexual contact may no longer be subsumed under this code. An opportunity for this is offered by the current (2010) revision of the epidemic law.
The draft of the proposed new Law on Epidemics removed much of the draconian provisions of Article 231, leaving only intentional exposure or transmission a criminal offence.
However, according to Groupe sida Genève
The present version put before the assembly maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.
Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.
The consequence is that Switzerland will move from having one of the most draconian and discriminatory laws on HIV exposure in the world to one that is similar to Canada’s – making disclosure of HIV-positive status a defence to alleged exposure or transmission, in effect mandating disclosure before any kind of unprotected sex by someone aware they are living with HIV. This is a lost opportunity for Switzerland to lead the world in decriminalisation of non-disclosure, alleged exposure and non-intentional transmission (following the lead of The Netherlands in 2005).
I’ll be posting more on this once I’ve digested all of the documents linked to in the press release below, and spoken with some insiders in Switzerland. But I join Groupe sida Genève in condemning “the backwards attitude” of the Swiss authorities.
Full press release below:
Groupe sida Genève denounces the proposed changes to art. 231 of the Swiss Penal Code. Exposure and transmission of HIV will remain a criminal offense despite best evidence that criminalisation is incompatible with the aims of successful general prevention programmes.
Included in the new provisions was one, article 86 (80 in the consultation version), to amend article 231 of the Swiss Penal Code incriminating the propagation of an infectious human disease.
The bill as it came out of the consultation process proposed to abrogate the paragraphs dealing with intentional and negligent exposure and transmission of HIV. Only the qualified form of malicious intent would have been indictable, the others would not have been considered offenses.
However, the bill, in the present version put before the assembly, maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.
Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.
Groupe sida Genève is convinced this amendment represents the complete opposite of the position taken by the Swiss Federal Commission for AIDS-related issues (FCAI) in its most recent Declaration on the criminality of HIV transmission. It not only maintains the criminalisation of HIV positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination.
Groupe sida Genève is dismayed by this proposal and would like to encourage all to join in our condemnation of the backwards attitude of the Swiss Authorities. Please give this information the widest possible distribution in your networks.
Background
All Swiss federal legislation goes through a consultation procedure where all concerned stakeholders can give their views on proposed legislation. Bills traditionally include the results of the consultation procedure as this ensures the bill achieves the greatest possible consensus.
Article 231, incriminating propagation of a human disease, is one of two provisions in the Penal Code under which persons accused of transmission and exposure to HIV are customarily indicted, the other being article 122 concerning grievous bodily harm.
Under article 231 the intentional transmission of a human disease is punished by a custodial sentence of not more than 5 years whilst the negligent transmission or exposure by a sentence of not more than 3 years. In both cases the minimum sentence is 30 day-fines (jour-amende).
Approximately 39 HIV positive persons have been sentenced under one or the other or a combination of both provisions. In 2009, the criminal chamber of the Geneva Cantonal Court dismissed a case of exposure based on the 2008 declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on infectiousness of HIV under effective ART and the expert testimony of Professor Bernard Hirschel. To date it remains unclear whether the decision will be make jurisprudence.
References and further reading
Federal department of the Interior press release on the Revision of the Federal law on the fight against Epidemics. 03.12.2010 (link)
Declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the criminality of HIV transmission. 18.11.2010 (PDF)
Summary of the declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the infectiousness of HIV on effective ART treatment (Swiss statement). 30.01.2008 (PDF in French) (Canadian HIV/AIDS Legal Network’s English translation PDF) The full text of the declaration was published in: Schweizerische Ärztezeitung / Bulletin des médecins suisses / Bollettino dei medici svizzeri / 2008; 89:5)
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