Uganda: ABC Radio interviews HIV criminalisation survivor, Rosemary Namubiru, and UGANET’s Dora Kiconco Musinguzi

Listen to Natasha Mitchell compelling interview with HIV criminalisation survivor, Rosemary Namubiru, and UGANET’s Dora Kiconco Musinguzi on the challenge to the problematic HIV criminalisation statutes within Uganda’s HIV/AIDS Prevention and Control Act.

This seven minute audio report from AIDS 2016 in Durban is excerpted from ABC Radio’s longer podcast, The brutal politics of a virus that won’t go away, by reporter Natasha Mitchell for Background Briefing. 

Listen to and/or download the full podcast and read the transcript on ABC Radio’s website.

The transcript of Natasha’s HIV criminalisation-related report is below.

Natasha Mitchell: In Uganda, around 7% of people are infected, and while the country is recognised for taking decisive action against HIV, the government’s harsh attitude and laws is dramatically undermining that progress.

Rosemary Namubiru is a 66-year-old nurse, mother and grandmother. She found out she had the virus just three years ago, and she thinks she got it from a patient.

Rosemary hadn’t yet disclosed her status at work, but when she was wrongly accused of intentionally infecting a patient, before she knew it the full force of the law was thrown at her.

Rosemary Namubiru: I saw the police coming, and they were holding me, ‘You are under arrest for murder.’ Then they called the media, so when I was in that room they called and told me, ‘Come out.’ I came out and I found a crowd of cameramen, media people.

Natasha Mitchell: Outside the police station?

Rosemary Namubiru: Yes.

Natasha Mitchell: Rosemary was charged with attempted murder after she accidentally pricked herself with a needle while treating a child. The mother watching on was worried and reported Rosemary. While the child wasn’t infected, thankfully, all hell broke loose when Rosemary’s HIV positive status was confirmed and made public. Rosemary was arrested and paraded in front of the media, who labelled her a ‘killer’ and a ‘murderer’.

Rosemary Namubiru: They were trying to manhandle me. They were taking photographs of me. They were calling me all sorts of names, ‘Murderer, killer. Look at this woman, a killer, a murderer.’ And it went all over the country in the national newspapers, in the English newspapers. ‘That murderer, the murderer. If we see her we shall beat her, we shall kill her.’ It was the talk of town. Even my village. Initially, they labelled it as ‘murder’. Then it was reduced, ‘attempted murder’, and then it was eventually changed into ‘negligence’.

Natasha Mitchell: Rosemary was publicly shamed, and sentenced to three years in prison for negligence.

Lawyer Dora Kiconco Musinguzi is the executive director of Uganda Network on Law, Ethics and HIV/AIDS or UGANET.

Dora Kiconco Musinguzi: Rosemary’s story sent so many chills across the country amongst people living with HIV. She was the headline of the news. ‘Killer nurse’. ‘Monster nurse’. She was treated so cruelly at the police, she was beaten, her hair was pulled, right, left, and centre, and that caused a lot of fear among people living with HIV. So we see discrimination written on walls, written in political statements, discrimination is still real, so that is where we are. That’s Uganda’s story currently.

Natasha Mitchell: Rosemary Namubiru was released at the end of 2014 after her case received international attention.

In the same year, Uganda introduced the HIV Prevention and Control Act. At face value it’s about controlling HIV, promoting testing and treatment, and preventing discrimination. Uganda’s not alone here, HIV specific criminal laws are on the increase worldwide, and also exist in America and Europe.

But Dora Kiconco Musinguzi and colleagues are leading a legal challenge in the Ugandan Constitutional Court against key parts of the law, including certain provisions that demand disclosure of your HIV status, and criminalise those who transmit the virus intentionally.

Dora Kiconco Musinguzi: The question is at what point do you establish intention. In a circumstance where we have so many people that have not yet tested, how do you know that a person infected another? So anybody could blame the other for infecting them, and what should be a human condition, a disease, then becomes a criminal object and lives break, and families break, and you know how the media picks on this, and totally takes it out of context. We believe it’s going to be really dangerous.

Natasha Mitchell: At least half of the Ugandan population still don’t know their HIV status. And Dora Kinconco Musinguzi believes the HIV Prevention and Control Act will exacerbate their reluctance to get tested and treated and so cause the virus to spread.

Dora Kiconco Musinguzi: So if people fear, relate HIV testing with obligation, with imprisonment, with undue power of the law, we believe this is going to create a bigger barrier to testing, and that fails the objective of prevention and control because then we shall have more people left out of the treatment area.

Natasha Mitchell: And because pregnant women have to be tested for HIV, they’re at greater risk under this law.

Dora Kiconco Musinguzi: They are going to be found to be HIV positive fast, and if they don’t disclose then they are in the ambit of attempting to transmit, so that makes the women criminals. So there’s lots of unanswered questions. And yet on the other side science has given us hope that people who test and take their medicines very well, they become less infectious, so they don’t transmit HIV. The law neglects this science. The law does not consider what public health specialists are saying, but the Ugandan government has not put this into consideration.

Natasha Mitchell: The experience of Rosemary Namubiru is a cautionary lesson about why laws that criminalise HIV positive people can be so bad for public health.

Dora Kiconco Musinguzi: You shouldn’t be criminalised. These cases could be handled in another way. We are really asking the Constitutional Court to find out whether this is the law that will present and control HIV, and still afford dignity and non-discrimination for living with HIV.

Natasha Mitchell: Based on your experience, Rosemary, what do you feel about the criminalisation law in Uganda against people with HIV?

Rosemary Namubiru: It hurts. Ignorance kills, but it hurts when people just carry on, and people keep on saying, ‘Oh, that one, that one.’ Me, I didn’t get it sexually. It was during the course of saving lives of human beings, so it is not something to laugh about. I wouldn’t wish anybody to go through what I went through.

Natasha Mitchell: Rosemary Namubiru. She’s now retired from nursing.

Global advocacy highlights against HIV criminalisation presented at AIDS 2016

Yesterday, at the International AIDS Conference in Durban, the HIV Justice Network and GNP+ presented highlights relating to global advocacy against HIV criminalisation based on updated research from our Advancing HIV Justice 2 report.

Advancing HIV Justice: Building momentum in global advocacy against HIV criminalisation Download the pdf here

Background

HIV criminalisation impacts public health and human rights, undermining efforts to end AIDS. The unjust application of criminal law to people living with HIV based solely on their HIV status, either via HIV-specific criminal statutes, or by applying general criminal laws, is a growing, global phenomenon.

Description

A desk review of criminal proceeding reports and legal texts curated on the HIV Justice Network website as part of the research for the Advancing HIV Justice 2 report supplemented with data from GNP+ ́s Global Criminalisation Scan and Google searches. Recently reported data so far covers March 2013-September 2015 but will be updated to July 2016.

Lessons learned

Key developments in case law and law and policy reform have taken place in numerous jurisdictions, most of which came about as a direct result of advocacy from individuals and organisations working to end the inappropriate use of the criminal law to regulate and punish people living with HIV. However, a complex picture emerges of advocacy successes and proposed laws in some of the same countries/regions of the world suggesting disparate approaches to HIV criminalisation that are sensitive to local social, cultural, epidemiological and political contexts, as well as the capacity of advocates to challenge such laws and prosecutions. Although the evidence base against HIV criminalisation is strong, evidence alone is often not enough for policy- and lawmakers who want to be seen to be doing something to impact the HIV epidemic and who may be more swayed by emotive or ́popular ́arguments rather than implement a rational, evidence-based response.

Conclusions/Next steps

Despite a growing number of advocacy successes leading to improved legal environments for people living with HIV, much more work is required to strengthen advocacy capacity to ensure a more just, rational, evidence-informed criminal justice response to HIV that will benefit both public health and human rights.

Advancing HIV Justice: Building momentum in global advocacy against HIV criminalisation

HIV Justice Network presents important new HIV criminalisation data today at AIDS 2016

Today, at the International AIDS Conference in Durban, the HIV Justice Network and GNP+ will present important new data on HIV criminalisation based on updated research from our Advancing HIV Justice 2 report.

Global Trends in HIV Criminalisation (Download the pdf here)

HIV criminalisation is a growing, global phenomenon that is seldom given the attention it deserves considering its impact on both public health and human rights, undermining the HIV response.

In many instances, HIV criminalisation laws are exceedingly broad – either in their explicit wording, or in the way they have been interpreted and applied – making people living with HIV (and those perceived by authorities to be at risk of HIV) extremely vulnerable to a wide range of human rights violations.

Seventy-two countries currently have HIV-specific laws, rising to 101 jurisdictions when individual US states are included. Notably, 30 countries in Africa have such laws, including new overly-broad laws in Uganda (2014) and Nigeria (2015).

At least 61 countries have reported HIV-related criminal cases. This total increases to 105 jurisdictions when individual US states and Australian states/territories are counted separately.

However, not all countries have enforced HIV-specific laws and other countries have applied general laws: 32 applied general or public health laws, 26 used HIV-specific laws and 3 (Australia, Denmark and United States) have applied both.

During the 30-month period: April 2013 to October 2015, we found reports of at least 313 arrests, prosecutions and/or convictions in 28 countries.

The highest number of cases during this period were reported in:

• Russia (at least 115);

• United States of America (at least 104);

• Belarus (at least 20);

• Canada (at least 17);

• France (at least 7);

• United Kingdom (at least 6);

• Italy (at least 6);

• Australia (at least 5); and

• Germany (at least 5).

Global trends in HIV criminalisation

BEYOND BLAME
Challenging HIV Criminalisation @ AIDS 2016, Durban

(29 min, HJN, South Africa, 2016)

On 17 July 2016, approximately 150 advocates, activists, researchers, and community leaders met in Durban, South Africa, for Beyond Blame: Challenging HIV Criminalisation – a full-day pre-conference meeting preceding the 21st International AIDS Conference (AIDS 2016) to discuss progress on the global effort to combat the unjust use of the criminal law against people living with HIV.

Attendees at the convening hailed from at least 36 countries on six continents (Africa, Asia, Europe, North America, Oceania, and South America).

Beyond Blame was convened by HIV Justice Worldwide, an initiative made up of global, regional, and national civil society organisations – most of them led by people living with HIV – who are working together to build a worldwide movement to end HIV criminalisation.

The meeting was opened by the Honourable Dr Patrick Herminie, Speaker of Parliament of the Seychelles, and closed by Justice Edwin Cameron, both of whom gave powerful, inspiring speeches. In between the two addresses, moderated panels and more intimate, focused breakout sessions catalysed passionate and illuminating conversations amongst dedicated, knowledgeable advocates

HIV criminalisation firmly on the agenda at AIDS 2016

For those of you in Durban for AIDS 2016 this week and next, make sure you don’t miss all the amazing HIV criminalisation events taking place.

Download and print this 2-pager covering all the HIV criminalisation highlights (including posters and Global Village events) put together by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE.

And of course, we hope to see you at our pre-conference this Sunday July 17th, Beyond Blame: Challenging HIV Criminalisation. Download the Beyond Blame Final Programme.

Only a few places remain, so register now if you want to attend.

HIV criminalisation highlights at AIDS 2016 by HIV Justice Network

Key HIV transmission study shows no risk to HIV-negative partner when person with HIV is on suppressive antiretroviral therapy

By Simon Collins, HIV i-Base

Tuesday 12 July 2016

Published to coincide with IAS 2016 conference that opens in Durban next week, the PARTNER study showing the impact of HIV treatment (ART) on reducing transmission will benefit millions of people globally.

The results set a new challenge about whether transmission is anything other than a theoretical risk when someone is taking effective ART. This reverses the common assumption that, by definition, some level of risk always exists when one partner is HIV positive.

The PARTNER study provides good evidence that undetectable viral load might be a threshold below which sexual HIV transmission does not occur. The importance of the PARTNER study is that it included both gay and straight couples, that it measured risk in people who were not using condoms and that it estimated absolute risks.

Previous studies have been almost exclusively in heterosexual people who still reported high rates of condom use. The PARTNER study provides more than three times the amount of follow-up time from people not using condoms than all the previous studies combined. This includes 500 couple-years of follow up from people having anal sex without condoms.

Methods

Between September 2010 and May 2014 the PARTNER study prospectively enrolled 1166 serodifferent couples at 75 clinical sites in 14 European countries. Entry criteria included that the positive partner had an undetectable viral load on ART and that the couple were not always using condoms when they had sex.

Follow-up included routine sexual health checks (including HIV testing for the negative partners) and each participant also completed sexual history questionnaires to look at risk for different activities. Couples were only included in the final analysis when the most recent viral load for the positive partners was undetectable – defined as <200 copies/mL. The primary endpoint was the rate of within-partner transmissions, determined by phylogenetic analyses for all couples in which the negative partner became positive.

Results

Of 1166 couples enrolled, 1004 couples had at least one follow-up visit and 888 couples provided 1238 couple years of follow-up (median 1.3 years (IQR 0.8 to 2.0) per couple. This included 548 heterosexual (HT) couples and 340 gay male couples. The main reasons for data not being included in the follow-up analysis was: not yet reaching first follow-up visit (n=162), lack of HIV test (n=20), use of PEP or PrEP (n=9), no condomless sex (n=15), viral load >200 copies/mL (n=55) and lack of viral load result (n=17). There were no significant differences between couples who contributed to follow-up data compared to those who didn’t.

Although 11 people became HIV positive, none of these infections were phylogenetically linked transmissions. This was after at least 58,000 distinct times when couples had penetrative sex without condoms.

Baseline demographics were reported – as with all results – by categories of HIV status, gender and sexuality, with some differences between groups. This makes summarising results complex, but the median age ranged from 40 to 44 (with IQR overall ranging from 31 to 50 years). Gay men and HT women were a few years younger than HT men. Approximately 80% of the HT men were white compared to 70% of women and 90% of gay men. A higher percentage of gay men had education to college/university or higher (approximately 50% compared to 19% to 35% for heterosexuals. Although some of these differences were significant, other than there were fewer very young adults involved, they reflect the diversity of people living with HIV.

HIV positive partners had been on ART for a median of 10.6 (IQR: 4.3 to 15.6), 7.5 (IQR: 3.3 to 14.2) and 4.8 (IQR: 1.9 to 11.4) years, for HT men, HT women and gay men respectively. At baseline, couples reported having had sex without condoms for a median of 2 years (IQR 0.5 to 6.3), with differences between groups. For example, straight couples had been having sex without condoms for roughly 3 years (IQR 0.7 to 11 years) compared to 1.5 years (IQR 0.5 to 4 years) for gay couples. Approximately 23% of couples were in new/recent relationships (<6 months). Self-reported adherence to ART was similarly high at >90% in the three positive groups.  Similar proportions of each group also had CD4 counts >350 cells/mm3 (85% to 91%).

Based on data from the negative partners, overall, couples reported having sex without condoms a median of 37 times a year (IQR 15 to 71), with gay couples (median 41; IQR 17 to 75) reporting condomless sex at least 22,000 times and heterosexual couples (median 35; IQR 13 to 70) more than 36,000 times. These were rough estimates from recall and partners did not always report the same numbers. Some couples reported sex outside the main relationship: 108 gay couples (33%) and 34 heterosexual couples (4%).

None of the 11 incident HIV infections in negative partners (ten gay and one heterosexual) were phylogenetically linked to the positive partner. Most people (8/11) reported having sex without condoms with people outside the main relationship. All samples (n=22) were successfully sequenced for pol and 91% (n=20) were sequenced for env. None of the partner sequences clustered together and the results were consistent after using using several different analyses. Additional details for these analyses are described in the online supplementary material. [2]

With zero transmissions, the upper limit of the 95% confidence interval (95%CI) for the overall study was 0.3 per 100 couple years of follow up (CYFU). Each category of specific risks, given that the calculations are a factor determined by study numbers and power, had different upper 95%CI boundaries: for example, 0.88 for HT sex overall vs 0.84 for gay sex overall.

This means that the upper 95%CI for receptive anal sex for gay men (2.70 with ejaculation and 1.68 without ejaculation) needs to be interpreted as a factor of sample size: there were fewer CYFU so the upper limit is by definition higher. While this calculation is developed to define the potential range within which the true risk might lie, the 95%CI should not be interpreted as indicating a risk that has been observed in the study. To illustrate this difficulty, the higher estimated risk for heterosexual anal sex with upper 95%CI of 12.71 and 8.14 (with and without ejaculation, respectively) are driven by fewer CYFU with this as the primary risk rather than any biological reason for this to be much higher. Of note though, more than 20% of straight couples reported anal sex.

The ongoing PARTNER 2 study continues to follow up gay couples in the PARTNER study and to recruit additional gay couples, in order to produce a similarly powered evidence base for gay mean as for straight couples, with follow up until 2019. [2]

Also of note during the study, 91 HIV positive partners reported other STIs (n=16 HT men, 16 HT women and 59 gay men) – closely matching STIs in the negative partners, also without any increased risk reported for HIV transmission.

An non-technical i-Base Q&A on these results is also online. [3]

An extension of the PARTNER study is continuing to collect further data on risk for gay men. [4]

Simon Collins is a community representative on the steering committee of the PARTNER study.

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These results are simple to understand – zero transmissions from over 58,000 individual times that people had sex without condoms. They are also notable for the complexity of the analysis that was needed to prove that none of the new diagnoses were linked transmissions from within the couple.

Together, this provides the strongest estimate of actual risk of HIV transmission when an HIV positive person has undetectable viral load – and that this risk is effectively zero. While no study cannot exclude the possibility that the true risk might lie within the upper limit of the 95%CI, even if the true value is actually zero due to some as yet unproven mechanism, the 95%CI can never be zero, just becomes increasingly close. Neither the presence of STIs nor likely viral load blips between tests had any impact in enabling transmission.

The results provide a dataset to question whether transmission with an undetectable viral load is actually possible. They should help normalise HIV and challenge stigma and discrimination.

The results challenge criminalisation laws that in many countries, including the United States, continue to imprison hundreds of people based on assumptions of risk that these results disprove, even when condoms are used and viral load is undetectable.

Activist Sean Strub, from the SERO project (www.seroproject.com) said:

“Hundreds of people living with HIV in the US have been charged with criminal offences for the perceived or potential risk of HIV exposure or transmission. Some are serving or have served long prison sentences for spitting, scratching or biting and others for not being able to prove they had disclosed their HIV positive status before having sexual contact (even in the absence of any risk of HIV transmission). HIV criminalisation has created a viral underclass in the law, further burdening a disenfranchised community, putting a disproportionate share of the shared responsibility for preventing sexually-transmitted infections on one party, and discouraging people at risk from getting tested for HIV.”

The results will also positively impact on the quality of life for both HIV positive and HIV negative individuals who are in serodifferent relationships, irrespective of the choice to use condoms.

The ongoing PARTNER 2 study is continuing to follow-up gay couples and is still enrolling new couples to achieve a similar statistical power for anal sex compared to vaginal sex. For further details of sites please see the PARTNER2 website. [3]

Reference

  1. Rodger AJ et al for the PARTNER study group. Sexual activity without condoms and risk of HIV transmission in serodifferent couples when the HIV-positive partner is using suppressive antiretroviral therapy. JAMA, 2016;316(2):1-11. DOI: 10.1001/jama.2016.5148. (12 July 2016). Full free access.

    http://jama.jamanetwork.com/article.aspx?doi=10.1001/jama.2016.5148

  2. PARTNER study, supplementary material. JAMA (16 July 2016).
  3. i-Base Q&A from the study.

    http://i-base.info/qa-on-the-partner-study/

  4. PARTNER2 website.

    http://www.chip.dk/PARTNER-2

Webinar: HIV Criminalization Attitudes and Opinions of the American Public (Sero, 2016)

Presenters: Sean Strub and Dr. Rosita Thomas

Australia: Zaburoni v Queen legal analysis

This analysis is by David Buchanan SC, Barrister at Forbes Chambers, Sydney. It was originally published in LGBT Law Notes and is republished here with his permission.

In a case that should reduce the extent of overcharging in HIV criminal cases, the High Court of Australia (Australia’s apex court) has emphasised the importance of distinguishing between reckless behaviour and behaviour involving intention to transmit HIV.

In Zaburoni v The Queen [2016] HCA 12, a man was sentenced to nine and a half years in prison for unlawfully transmitting a serious diseases with intent to do so.  The evidence was that Zaburoni frequently had unprotected sex with his girlfriend, knowing that he had HIV, and that he lied to her, and later to investigating police, about his status.  However, the offence required proof of actual intention.  The High Court held that, if the evidence had established Zaburoni’s awareness of the probability that his conduct would result in his girlfriend contracting HIV, it would have been open to the jury to infer that Zaburoni meant to bring about that result.  However, the evidence did not rise to that level.

The Court distinguished between intention, on the one hand, and desire or motive, noting that a person can intend a result without desiring it.  Thus a person can have the infection of their sex partner as a purpose of their conduct whilst regretting that consequence.  The plurality observed “(t)he complainant said the appellant preferred unprotected sexual intercourse because it was more pleasurable.  Accepting that the appellant engaged in unprotected sexual intercourse because it gave him pleasure is not necessarily inconsistent with proof that he also had the intention thereby of transmitting HIV to the complainant.   It is the identification of evidence from which the latter inference could be drawn to the criminal standard that is the issue in this appeal.”

Zaburoni had tested positive to HIV and been told he must use condoms for sex.  The evidence was that he understood that advice.  But when he took up a relationship with a woman he told her he had been tested for HIV and was not HIV positive.  He had unprotected intercourse with her, telling her that he found condomless sex more pleasurable.  The complainant suffered seroconversion illness.  Zaburoni told her his brother had died from AIDS.  When the woman asked Zaburoni whether he had HIV, he said he did not.

The relationship later broke down.  About a year afterwards, the woman was diagnosed with HIV/AIDS and when she tackled Zaburoni about it, he admitted he was infected and said he found out after they had broken up.  She asked why he had failed to tell her of his condition.  He replied that he had not wanted to make her unhappy and that he thought that she was having a good time.  He said that he had been told by the doctors that he had had HIV for two years.  A friend of the complainant asked Zaburoni why he had not told the complainant and he responded that “I didn’t want to ruin her life”.

Later, in both a conversation with the complainant monitored by police and in interviews with police, Zaburoni lied about when he knew he was infected and the extent of his unprotected sex with the complainant.  Later Zaburoni, who had migrated to Australia many years previously, admitted having submitted a blood sample from an uninfected friend in order to satisfy Immigration authorities that he did not have HIV.

Although there was evidence that, given the length of the relationship (21 months), the risk of the complainant contracting HIV were about 14 per cent, there was no evidence that Zaburoni knew what the statistical likelihood was of the transmission of HIV as the result of unprotected heterosexual sex.  The plurality said “To the extent that the inference of intent depends upon foresight of the risk of the sexual transmission of HIV, it is the appellant’s understanding, whether informed or otherwise, that is material.  There was ample evidence from which to find that the appellant was aware of the risk of transmitting HIV to the complainant through unprotected sexual intercourse.  Apart from the medical advice that the appellant was given by several doctors in 1998 after he learned of his HIV positive status, his lies to the complainant about that status before their sexual relationship commenced, and during the course of it, point to his awareness of the risk of sexual transmission.  So, too, do his lies to the police about the number of times they engaged in unprotected sexual intercourse.”

The plurality concluded that “(a) rational inference open on the evidence is that the appellant engaged in regular unprotected sexual intercourse with the complainant because it enhanced his sexual pleasure and he was reckless of the risk of transmitting HIV to her.   The existence of that inference lessens the force of reasoning to a conclusion that the appellant intended to transmit the disease from the fact of frequent unprotected sexual intercourse.   Apart from frequent unprotected sexual intercourse, there is no evidence to support the inference that the appellant had that intention.  And the evidence fell well short of proving that the appellant believed that it was virtually certain that he would pass on HIV by regular unprotected sexual intercourse.”   In particular, none of the lies proved that Zaburoni knew that it was virtually certain that he would infect his partner with HIV if he had unprotected sex with her.

Whilst Zaburoni’s conduct was described as a form of “callous deception”, what this meant (as another judge put it) was that the evidence left open “a reasonable hypothesis that the appellant, not knowing the degree of risk, was extremely reckless and also callous.  As appalling as his selfish recklessness was, it cannot be equated with a subjective, actual intent to transmit the HIV virus.  In the absence of evidence of malice or knowledge of the degree of risk, a subjective intent to inflict the HIV virus was not proven beyond reasonable doubt.”

The conviction for intentionally transmitting a serious disease was quashed and a verdict of guilty of unlawfully doing grievous bodily harm substituted.

The full High Court decision can be accessed here.

A number of news reports and other analyses of the Zaburoni case can be found here.

US: National Association of Criminal Defense Lawyers pass resolution opposing all laws that base criminal liability and/or penalty enhancements on one's HIV status rather than on the intent to harm another individual

On May 21, 2016, at the spring meeting of the National Association of Criminal Defense Lawyers (NACDL), the board of directors unanimously adopted a resolution opposing all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual. Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more.

As set forth in NACDL’s resolution, “the focus on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit the virus, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization.”

“Laws such as these are textbook examples of flawed criminal justice policy,” said NACDL President E.G. “Gerry” Morris. “Furthermore, as a public health matter, these laws operate as an impediment to what should be the shared goal here – ending the epidemic. NACDL stands with the HIV/AIDS-affected community and others in unambiguously declaring that HIV is not a crime. It should not be treated as such. Rather than irrationally deploying the criminal law to stigmatize and punish the more than 1.2 million people in the United States living with HIV, we need to work together to advance policies that encourage, rather than deter people from learning of their HIV status and seeking life-saving treatment.”

NACDL’s May 21, 2016 resolution is below.

In addition, audio from a May 5, 2016 teleconference co-sponsored by NACDL, the Center for HIV Law and Policy, and the American Bar Association AIDS Committee – When Sex is a Crime and Spit is a Dangerous Weapon: A Teleconference on HIV Criminal Laws – is available here.

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Concerning HIV Criminalization

Las Vegas, Nevada

May 21, 2016

Introduction

Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more. The focus of these laws on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit HIV, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization. In sum, these laws do not comport with well-established American criminal law principles concerning intent, harm, and proportionality.

The bulk of HIV criminalization laws were enacted prior to the availability of effective antiretroviral therapy for HIV, which not only can extend significantly the lifespan of those with HIV, increasing the probability that a person with HIV never develops AIDS, but also has been shown in studies to dramatically reduce the risk of transmission by those carrying the virus. An obvious prerequisite to securing appropriate treatment is getting tested to determine if one is carrying the HIV virus. Being aware of one’s HIV status is also a necessary, and all too often sufficient, threshold fact making one vulnerable to prosecution under these laws. That, however, creates a powerful disincentive to getting tested for the virus. According to the President’s Advisory Council on AIDS, “Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.”

For additional background information, attached are (i) the President’s Advisory Council on HIV/AIDS (PACHA) Resolution on Ending Federal and State HIV-Specific Criminal Law, Prosecutions, and Civil Commitments (PDF), (ii) the U.S. Department of Justice, Civil Rights Division, Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors (PDF), and (iii) the Positive Justice Project1 Guiding Principles for Eliminating Disease-Specific Criminal Laws (PDF).

Resolution

WHEREAS, there are more than 1.2 million people in the United States living with HIV, and an estimated 156,000 of those people are unaware of their infection, according to the Centers for Disease Control and Prevention (CDC); and

WHEREAS, the United States has led the world in HIV prosecutions; and

WHEREAS, the National Association of Criminal Defense Lawyers (NACDL) has long been concerned with the trend in the criminal law away from the moral anchor of adequate mens rea, or criminal intent, requirements; and

WHEREAS, the focus on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit the virus, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization; and

WHEREAS, punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV; and

WHEREAS, such laws constitute bad public health policy, erecting disincentives to getting tested for HIV when modern and effective antiretroviral therapy for HIV not only can extend significantly the lifespan of those with HIV, increasing the probability that a person with HIV remains healthy and never develops AIDS, but also can dramatically reduce the risk of transmission by those carrying the virus; and

WHEREAS, according to the CDC and the Civil Rights Division of the Department of Justice, “most of these laws do not account for actual scientifically-supported level of risk by type of activities engaged in or risk reduction measures undertaken” and “many of these state laws criminalize behaviors that the CDC regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures”; and

WHEREAS, HIV criminalization was bad criminal justice policy prior to the advent of modern and effective antiretroviral therapy, and remains so today; and

WHEREAS, NACDL’s core mission includes working to ensure justice and due process for persons accused of a crime as well as promoting the proper and fair administration of criminal justice; therefore

BE IT RESOLVED that NACDL hereby opposes all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual. Accordingly, NACDL supports the repeal of such criminal laws as fundamentally unfair and unjust. Recognizing that outright repeal can result in the abusive use of existing statutes, NACDL also supports modernization of these criminal laws to incorporate strong principles of intent and proportional punishment.

Footnote

1 The Positive Justice Project is a national coalition of organizations and individuals working to end HIV criminalization in the United States. It is a project of The Center for HIV Law and Policy, a national legal and policy resource and strategy center working to reduce the impact of HIV on marginalized communities and to secure the human rights of people affected by HIV. Organizational members of the Positive Justice Project Steering Committee include the Center for HIV Law and Policy, the National Alliance of State & Territorial AIDS Directors, the National Black Leadership Commission on AIDS, and the National LGBTQ Task Force.

 

 

US: Blog post by HIV criminalisation survivor Monique Howell-Moree

My name is Monique Howell-Moree. As a survivor of HIV criminalization myself, I believe laws criminalizing HIV definitely need to be changed. I would have had to serve 8 to 12 years if I had been convicted, because my state, like most states, does not take into consideration current science of the risk transmission. Nobody wants to take the time to educate themselves and update themselves on what we now know about transmission risks– especially when someone is in care and taking care of themselves–and the result is unjust laws and prosecutions. Transmission rates when in care are so low compared to how things were in the ’80s and early ’90s, yet laws have not kept up with medical advances.

A lot of these laws are very outdated, and stigma is what is still keeping these laws alive. I believe that most states still live in fear of the unknown. They still have stigma circulating around their communities, and they refuse to bring about CHANGE. Ignorance and lack of knowledge are still prevalent in many states.

When I was on trial myself, not one person in the room knew much about HIV. If I was convicted I could have possibly lost my children, home, and would even have been labeled a sex offender. That’s not even fair, when so many other crimes are so much worse than this. HIV is not a death sentence, but people in many states still believe it is. If someone is intentionally trying to put their partner at risk, then yes, we do need to make sure there is a remedy, because of course we are trying to stop the spread of HIV. But if someone just is afraid, not educated and doesn’t have the support they need when disclosing their status, that’s when our local  ASOs and HIV organizations need to come together and show them how to say the right words and do the right thing when disclosing. Women are sometimes even in a violent relationship and fear the repercussions of disclosure, or are afraid to say the words that they need to say due to embarrassment or guilt.

These outdated laws also cause people to actually be afraid, because the laws are worded as if we are the worst people on this earth. People fear of losing their jobs, homes, children etc. These laws makes no sense, and the punishment definitely doesn’t fit the “crime.”

Many factors can play into why a individual discloses or does not disclose. If we can raise more awareness about HIV everywhere, even in the workforce, then maybe, just maybe, people’s views will evolve. Sharing our testimonials and allowing policymakers and the public to hear our hearts will also help. We must take responsibility for ourselves and also stand for what we believe is fair and right.

When I was charged, I had none of this type of support. Serving my country at the time in the Army, I only signed a form in tiny, tiny fine print saying to make sure I tell my status if I should engage in any sexual act, and that was it. Still afraid and fearing rejection, I didn’t know the best way to disclose, and didn’t even think I would get into another relationship after my diagnosis. Had I had the support and knowledge that I have now back then, I would have most definitely have done things differently. I wouldn’t have been ashamed of who I was, and I would have been honest and disclosed my status when involved in a sexual act.

Changing these laws will have a major impact on many HIV survivors. We shouldn’t have to live in fear of being who we are. Intentionally trying to cause harm is different from just needing support and help on how to disclose the proper way when necessary. We fear rejection, but the laws make disclosure even harder, because we so fear the punishment that we just keep things bottled up inside as a safe place. Disclosing can be tough. I’m a living witness to that; but we can help many if we continue to raise awareness on HIV criminalization. Many are behind bars for cases where no transmission had taken place, but HIV stigma makes the system want to lock us up, rather than educating policymakers and the public.

My sisters and brothers that are living with HIV: We must have each other’s backs and support one another, because the laws are definitely set up to pit us against a society that has not a clue that we are still human beings and deserve to be treated fairly and not as if we still live in the 1980s. So much has improved since then, and it’s time that we all take a stand to help get these laws changed!!!