Regardless of the merits of individual cases, criminal prosecution of people for exposure or transmission of HIV is considered by some commentators to be problematic because prosecutions:
Quebec develops expert consensus on viral load and HIV transmission risk | CATIE – Canada's source for HIV and hepatitis C information
Quebec develops expert consensus on viral load and HIV transmission risk In the past few years, a large body of evidence has emerged supporting the use of antiretroviral therapy (ART) as an HIV prevention tool.
The AMA Adopts a Resolution Opposing HIV Criminalization
The Center for HIV Law and Policy is a national legal and policy resource and strategy center working to reduce the impact of HIV on vulnerable and marginalized communities and to secure the human rights of people affected by HIV.
HIV Criminalization: A Physician's Perspective
This essay is an excerpt from the LGBT/HIV criminal justice report, A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People with HIV. His name was Paul. I slid into the chair next to him in my examination room to console him as he cried.
Canada: More than 70 scientific experts sign on to consensus statement on HIV transmission risks in the context of criminal law
More than 70 scientific experts Canada-wide have today released a consensus statement confirming when there is a low-to-zero possibility of a person living with HIV transmitting the virus in various situations.
The statement was developed out of a concern that “a poor appreciation of the scientific understanding of HIV and its transmission” is contributing to the overly broad use of criminal charges against people for alleged non-disclosure of HIV status in Canada.
It concludes that “HIV physicians and scientists have a professional and ethical responsibility to assist those in the criminal justice system to understand and interpret the science regarding HIV. This is critical to prevent miscarriage of justice and to remove unnecessary barriers to evidence-based HIV prevention strategies.”
According to a press release issued today
The Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO), la
Coalition des organismes communautaires québécois de lutte contre le VIH/sida (COCQ-SIDA) and the Ontario Working Group on Criminal Law and HIV Exposure applaud this consensus statement. Grounded in a comprehensive review of the most recent and relevant scientific evidence, the statement confirms that current Canadian law is going too far and ignoring the science. We welcome scientific experts speaking out against the many unjust prosecutions against HIV-positive people that we are seeing in Canada, which have too often resulted in draconian sentences for conduct that posed no significant risk of transmitting the virus.
In 2012, we expressed our deep disappointment with the decisions of the Supreme Court of Canada in the cases of R. v. Mabior and R. v. D.C. Under these rulings, people living with HIV can be sent to jail and registered as sexual offenders for life for not disclosing their status even if they have used a condom or had an undetectable or low viral load, had no intent to harm and indeed did not transmit HIV. We characterized these decisions as being unfair, harmful to both individual and public health, and at odds with the science. Since these rulings, we have witnessed trial judges struggling with the difficulties they pose, particularly when this overly broad approach contradicts the scientific evidence.
Today, scientists themselves have detailed their concerns with the continued overuse of some of the most serious charges in the Criminal Code in circumstances in which prosecutions are entirely unjustified. In the consensus statement released today, scientists have sent a strong message to Crown prosecutors and judges calling for restraint.
Indeed, scientists’ assessment of the evidence supports our long-standing call for, at most, an extremely limited use of the criminal law. Among other things, the science supports the position that people who practice safer sex (e.g., by using a condom) or who are under effective antiretroviral therapy should not be prosecuted or convicted for HIV non-disclosure. Prosecuting people in such circumstances runs counter to available scientific evidence showing that the risk of transmission is negligible or even nil. Such misuse of the criminal law does nothing to help curb the HIV epidemic and drives people further away from effective HIV prevention, care, treatment and support services.
We welcome the stand taken today by medical experts and scientists from all across Canada and endorsed by the Association of Medical Microbiology and Infectious Disease Canada. It is time for the Canadian criminal justice system to take into account what the science tells us about HIV and its transmission; this evidence cannot be legitimately disregarded.
Read the full consensus statement below or download (for free) from Canadian Journal of Infectious Diseases & Medical Microbiology at http://www.pulsus.com/cjidmm
Switzerland: New handbook for parliamentarians on effective HIV laws includes case study and interview with Green MP Alec von Graffenried
A new publication from the Inter-Parliamentary Union (IPU) and United Nations Development Programme (UNDP), written by Veronica Oakeshott, is an excellent new resource to help inform advocacy efforts to remove punitive laws and policies that impede the HIV response.
Aimed at parliamentarians, ‘Effective Laws to End HIV and AIDS: Next Steps for Parliaments’ (aussi disponible en français) is a practical handbook showing which types of laws are helpful and unhelpful in the HIV response, and provides examples of legislation from around the world that have been effective in limiting new HIV infections.
It also includes case studies and interviews with some of the parliamentarians involved in law reform, most notably with Swiss MP Alec Von Graffenried whose last minute amendment resulted in the new Law on Epidemics containing a clause that only criminalised intentional disease transmission.
Other case studies highlighted in the handbook include: decriminalisation of sex work in New Zealand; decriminalisation of personal drug use in Portugal; ending discrimination against people living with HIV in Mongolia: and legal recognition for transgender and intersex people in South Africa.
The Swiss Law on Epidemics was finally passed, following a national referendum, in September 2013. However, it won’t come into effect until January 2016.
Below is the section explaining how and why the Swiss law reform process took place. It’s an excellent example of how advocates saw an opportunity to work with clinicians, scientists and key parliamentarians in order to make a difference. It also shows that the law reform process can be a slow and complex undertaking. Patience here is definitely a virtue.
Switzerland: Decriminalisation of unintentional HIV transmission and exposure
Name of act
The Epidemics Act 2013
Summary
Repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).
Why the law is important for HIV
Criminalization of HIV transmission, exposure or non-disclosure creates a disincentive for testing and gives non-infected individuals false confidence that they will be informed of any infection. In reality, their partner may not even know his or her HIV status and everyone should be responsible for protecting their own sexual health. The latest scientific findings have shown that people on HIV treatment who have an undetectable viral load and no other sexually transmitted infections are not infectious. Such people may want to have consensual unprotected sex. Criminalizing them for doing so has no positive public health impact and is an intrusion into their private life. UNAIDS is calling for the repeal of all laws that criminalize non-intentional HIV transmission, non-disclosure or exposure.
How and why was decriminalization of HIV transmission and exposure introduced in parliament?
In 2007, the Swiss Government decided to revise the Swiss law on epidemics. This was not an HIV-specific law and the decision to review it was not HIV-related but due to concerns that Switzerland was not well-placed to deal with other global epidemics, such as severe acute respiration syndrome (SARS) and H1N1. However, HIV campaigners and persons working in public health saw an opportunity to insert a clause into the Act that would amend Switzerland’s current Penal Code, Article 231 of which has been used to prosecute people living with HIV for transmission and exposure. Since 1989, there have been 39 prosecutions and 26 convictions under Article 231 in combination with the Swiss law on “grievous bodily harm”.
In December 2007, the government began a consultation on a draft Epidemics Bill and campaigners proposed a clause in it amending Article 231 of the Penal Code. In 2010, the government introduced the draft Bill into parliament. However, HIV campaigners were not happy with the new Bill as tabled and campaigned for changes throughout its passage through parliament. Improvements to the Bill were made at the Committee stage but it was not until the final vote at the National Council in 2013 that a last-minute amendment was tabled by Green MP Alec von Graffenried, which achieved campaigners’ core aim of decriminalizing unintentional transmission or exposure.
Was cross-party support secured and, if so, how? How was a majority vote secured?
The last-minute amendment was tabled and passed with 116 votes to 40. The key arguments made in favour of the amendment centred on the unsuitability of public health law to deal with private criminal matters. This rather theoretical argument appealed to legislators, many of whom are practising lawyers or have a legal background. However, the wider case for decriminalization had been made to parliamentarians over a period of many years inside and outside parliament and was reinforced by new sci- entific announcements and court decisions. MPs across the political divide realized that HIV is no longer a death sentence, but a manageable condition and that the right treatment can reduce an individual’s infectiousness to zero. In this context, MPs were more open to the idea of legal change.
During the campaigning period of many years, different arguments were made to appeal to different MPs across the political spectrum. Those on the right often responded best to the notion of an individual’s responsibility to protect their own sexual health and those on the left responded better to public health arguments. Efforts were also made to lobby the head of health departments at the regional level, who were then able to communicate their support for the change to colleagues at the national level.
How long did it take to pass the law?
It took almost six years from the consultation on the first draft of the Bill until it was confirmed by referendum in September 2013. The law will come into effect in January 2016.
Read and/or download the entire publication below.
Effective Laws to End HIV and AIDS: Next Steps for Parliaments. Inter-Parliamentary Union, 2013
Research agenda into the public health impact of overly broad HIV criminalisation highlights five areas where researchers and advocates can collaborate
A newly published report suggests a number of concrete ways that research into the impact of overly broad HIV criminalisation on public health can move the policy agenda forward, and help reform laws and create better policies for people living with HIV and most affected communities.
The report is the result of an international workshop on HIV Prevention and the Criminal Law held in Toronto, Canada on April 27th and 28th 2013 that also led to the creation of the HIV Justice Network’s video documentary, More Harm Than Good.
The workshop’s aim was to support, encourage and further develop emerging research on the public health implications of criminalising HIV non-disclosure, exposure and transmission. It was the first international meeting focused exclusively on sharing, critiquing and strengthening new empirical research on this topic.
The report explores three key themes that arose over the course of workshop discussions – (1) the relationship between research and advocacy; 2) the implications of HIV-related criminalisation for public health practice; and (3) the potential and limits of public health research for criminal law reform – and offers suggestions for new directions for future research on the public health implications of criminalizing HIV non-disclosure, exposure and transmission.
Workshop discussions emphasised that research on the public health implications of HIV-related criminalisation is able to do the following:
- Identify the impacts of HIV-related criminalisation on HIV prevention, care, treatment and support. Research into such impacts is especially important in light of new approaches that respond to the HIV epidemic by increasing the uptake of HIV testing and counselling, linking HIV-positive people to health and social services, initiating HIV antiretroviral therapy as early as possible, and retaining people living with HIV/AIDS in medical care.
- Elucidate the influence of criminalising HIV non-disclosure, exposure and transmission on the attitudes, opinions, beliefs and activities of people living with HIV/AIDS, people and communities at risk, service providers in public health and clinical settings and staff in ASOs and community-based organisations.
- Inform efforts to respond to the potential discriminatory enforcement of criminal laws by identifying the demographic patterns associated with HIV-related criminal prosecutions.
- Provide public health authorities with evidence required to become more engaged in the issue, to develop policy and programmes, and to comment publicly on an increasingly important facet of the HIV epidemic.
- Identify legal, ethical and practice issues faced by public health and clinical staff as a result of HIV criminalisation, and provide evidence to support legally and ethically sound policy and practice.
- Assess the efficacy and costs and benefits of different policy options to address HIV transmission.
- Inform decisions by legislators, criminal prosecutors and courts in a number of jurisdictions.
The meeting identified five main suggestions for moving the research field forward.
1. Explore novel analytical and methodological approaches
Given the complexity of HIV criminalisation, applied and theoretical research agendas should be structured broadly, inquire into a wide range of possible “implications” and account for the intersectionality of factors such as race, class, migration, colonisation and gender. New research would benefit from a deeper engagement with socio-legal studies and criminology.
Further suggestions:
- Ground research questions in a health and human rights or an intersectional/anti-oppression framework as alternatives to a public health implications framework.
- Critically engage with mainstream feminist analysis that supports HIV criminalisation.
- Use qualitative approaches, including narrative analysis, ethnographic methods and participatory action research to:
- Capture issues of importance to, and respond to the needs of, communities of people living with and at risk of HIV;
- Document and explore experiences of people who have been criminally charged and/or prosecuted as well as those who have brought forward police complaints;
- Explore HIV criminalisation as a complex, constructed and varied social phenomenon.
2. Conduct intervention research
Research on the public health implications of criminalising HIV non-disclosure would be enhanced by studies exploring the processes and outcomes of interventions that offer alternatives to criminalisation and/or that seek to prevent HIV transmission.
Further suggestions:
- Conduct research on and explore the implications of using restorative justice approaches for criminal offences related to HIV non-disclosure, exposure and transmission.
- Evaluate the impact of new or existing case management strategies that focus on sexual activities that risk incarceration and HIV transmission:
- Explore collaborations with HIV/AIDS Service Organisations (ASOs) and other community-based organisations as sites for intervention research. ASOs offer a less coercive and more supportive environment to address challenges of concern to the public health and the criminal justice systems;
- Conduct ethnographic research on the “Calgary Model.” (See ‘A framework to consider for the non-disclosure of HIV/AIDS – the Calgary Health Region model’ halfway down this page) The Calgary Model is a policy-informed public health case management model that has been endorsed by policy makers in Canada, yet has not been empirically studied.
3. Conduct research on factors that underpin and drive HIV criminal prosecutions
Research on the criminalisation of HIV non-disclosure, exposure and transmission has yet to rigorously explore the various factors that encourage criminal prosecutions. There has been very little research involving people who initiate criminal complaints, their motivations
for doing so, their relationships with people living with HIV/AIDS and their experience of the criminal justice system. Relatedly, we know very little about police and prosecutors, their understandings of laws related to HIV non-disclosure, exposure and transmission, their knowledge of HIV and HIV transmission, and their attitudes towards people living with HIV/AIDS. There is a strong need for research that explores the underlying social, structural, behavioural and cultural factors that drive HIV-related criminalisation.
Further suggestions:
- Prioritize police, prosecutors and complainants in new research.
- Conduct research on the moral and other discourses that underpin criminalization and that inform the perspectives of the general population, those living with and at risk of HIV, legislators and policy makers and those who work in the criminal justice and public health systems.
Potential research foci include:
- norms of sexual practice in communities as contrasted with principles of “good behaviour” applied by courts;
- lessons from harm reduction and drug policy reformists who have had some success in working with police in opposing drug prohibition and the “war on drugs”;
- critical analysis of how the “good versus bad” person living with HIV/AIDS is discursively constructed in media and elsewhere;
- how issues of “personal responsibility” and “wrong” conduct get constructed, expressed and enacted, and to what end;
- redesigning existing quantitative surveys to more robustly inquire into the attitudes, opinions and beliefs of respondents;
- a moral mapping and deconstruction of pro-criminalisation arguments.
4. Continue to research the implications of criminalization for those who work in HIV prevention and in clinical and support services for people living with HIV/AIDS
Additional research on how criminalisation affects the work of various practitioners engaged in HIV prevention and the treatment, care and support of people living with HIV/AIDS can further our understanding of the broad implications of criminalizing processes. Comparative studies across national jurisdictions would yield important results.
Further suggestions:
- Build on existing studies by incorporating mixed methodologies into research designs:
- Investigate innovative and more rigorous approaches to sampling than has been the case in existing studies.
- Explore how changes in front-line practice related to criminalisation may be connected with broader policy and program changes.
- Investigate the discursive and other bases of public health response (e.g. explore the origins and impact of “unwilling and unable” terminology in Canadian public health policy).
5. Conduct media research
The mass media are an important source of public information about the criminalisation of HIV non-disclosure, exposure and transmission. While we have many accounts of how the media coverage of HIV criminal cases contributes to HIV-related stigma, we have little published research that draws on rigorous sampling methods to explore this question.
Further suggestions:
- Conduct research to understand the impact of media coverage on communities and people living with and affected by HIV, the general public and legal and policy decision makers.
- Inquire into the association between media coverage and stigma especially in relation to African, Caribbean and Black communities.
- Systematically analyze the narrative and rhetorical conventions used by mainstream media when reporting on and editorialising about HIV criminal cases.
- Investigate the use of media by police as an investigative tool.
This article is only a summary of the highlights of the report, and the entire meeting report is well worth reading.
The Criminalization of HIV Transmission and Exposure Working Group from Yale University’s Center for Interdisciplinary Research on AIDS (CIRA) have also published a research agenda focused primarily on the the research needs of advocates in the United States. This was based on a meeting held in November 2011 and authored by some of the same participants that attended the Toronto workshop, including Carol L. Galletly, Zita Lazzarini and Eric Mykhalovskiy.
This meeting concluded that the research agenda should include studies of:
(1) the impact of US HIV exposure laws on public health systems and practices;(2) enforcement of these laws, including arrests, prosecutions, convictions, and sentencing; (3) alternatives to HIV exposure laws; and (4) direct and opportunity costs of enforcement.
You can read the full research agenda, originally published in the American Journal of Public Health in August 2013, below.
Criminalization of HIV Transmission and Exposure – Research and Policy Agenda (August 2013)
Three new publications from Global Commission on HIV and the Law help advocacy to move forward
In support of efforts by UNDP, UNAIDS and other UN agencies, governments and civil society to take forward the Commission’s recommendations, and learning lessons countries who have undertaken follow up activities including national dialogues, legal review and legal environment assessments, UNDP’s HIV, Health and Development Group is pleased to launch the following knowledge products:
The summary of an e-discussion “The Global Commission on HIV and the Law – Taking the Commission’s Recommendations Forward” held in June and July 2013, organized by UNDP’s HIV, Health and Development Group in collaboration with the Democratic Governance Group and the Gender Team, aimed to analyze experiences in implementing the Commission’s recommendations a year after the launch of the Commission’s Report, while identifying challenges, good practices and lessons learned in addressing human rights and legal frameworks in the context of HIV.
Link: http://on.undp.org/sZN9R
A Practical Guidance entitled: Legal environment assessment for HIV: An operational guide to conducting national legal, regulatory and policy assessments for HIV”. The manual on Legal Environment Assessment for HIV provides UN practitioners and Joint UN teams on AIDS as well as national governments, civil society, development partners and legal experts or advisers with guidance on how to support national efforts on reviewing laws, policies and practices pertaining to HIV. It can also be used to inform the development and oversight of HIV programmes supported by the Global Fund. The manual offers step-by-step guidance on how to undertake a national Legal Environment Assessment, with concrete case studies, tools and resources. It is intended to assist governments, civil society and other key stakeholders to develop evidence-informed policy and strategy, to review and reform laws and policies based on human rights considerations and support increased capacity to achieve enabling legal environments for effective HIV responses.
Link: http://on.undp.org/sZNzR
A practical manual entitled National Dialogues on HIV and the Law for use by UNDP regional HIV teams and country offices on the organising of national dialogues pertaining to HIV and the law. National dialogues present an opportunity to determine how the law can advance health and human rights. National Dialogues can provide an opening for frank, constructive multi-stakeholder exchanges on sensitive issues. To date, a number of these dialogues have created a unique platform from which to raise contentious issues regarding the role of the law in the AIDS response. They have also facilitated a dialogue between those who develop, interpret and enforce laws on the one hand, and those who experience their impact on the other. In addition, key stakeholders involved in National Dialogues can become vital agents who help to create legal environments that support effective HIV responses. This manual is intended to assist UNDP managers and programme staff to support governments and civil society actors to organize a National Dialogue resulting in concrete action planning for strengthening the legal and social environment. This manual can also help the Country Dialogues being undertaken to inform the development of HIV concept notes and proposals for the Global Fund to Fight AIDS, Tuberculosis and Malaria. It provides case studies, tools and resources to guide the national process. It draws on experiences and lessons learned from the Global Commission on HIV and the Law as well as from a number of countries who have already convened a National Dialogue.
Link: http://on.undp.org/sZNPJ
Global Commission on HIV and the Law Jan 2014 newsletter highlights important legal and policy developments as well as new resources
We are pleased to share this first Newsletter Issue of 2014 containing several important developments. Perhaps most significantly, there have been a number of controversial recent anti-LGBT rulings and legislation around the world. In the same week in December, both Nigeria and Uganda adopted harsh new anti-LGBT related laws, which no doubt will have repercussions on the HIV response in those countries. Also, in December in response to the Supreme Court of India’s overruling of an earlier lower court decision to strike down an anti-sodomy law, effectively recriminalizing same sex behavior, former Commissioners of the Global Commission on HIV and the Law jointly issued a statement expressing dismay at the decision of the country’s top court. On a more positive note, in October Uzbekistan lifted all restrictions on entry, stay and residence for people living with HIV – see this UNAIDS infographic on current travel restrictions for PLHIV.
Several national and local level dialogues on HIV, human rights and the law were held in recent months, including in Brazil (November), China (December), Democratic Republic of Congo (November), and Dominican Republic (June). On 28-31 October, the first Eastern and Southern Africa Regional Judicial Dialogue on HIV and the Law was held in Nairobi. Also in October, UNDP and UNAIDS organized an information session on access to affordable medicines in Nay Pyi Taw, Myanmar, attended by more than 30 parliamentarians. Visit our recently updated interactive map for more information on efforts by UN agencies, including UNDP and UNAIDS, in partnership with governments, civil society and international donors, to support countries in creating enabling legal environments for HIV responses and advance the findings and recommendations of the Global Commission on HIV and the Law.
A number of key knowledge products were published this past quarter, such as: Judging the epidemic: A judicial handbook on HIV, human rights and the law (UNAIDS, 2014); Protecting the rights of key HIV-affected women and girls in health care settings: A legal scan (UNDP, SAARCLAW, WAP+, 2013); HIV and human rights manual for the Democratic Republic of the Congo (French) (UNDP, 2013); Young people and the Law in Asia and the Pacific: A review of laws and policies affecting young people’s access to sexual and reproductive health and HIV services (UNESCO, UNFPA, UNAIDS, UNDP, Youth Lead, 2013); and Compendium of Judgments for Judicial Dialogue on HIV, Human Rights and the Law in Eastern and Southern Africa (UNDP, 2013).
UNAIDS releases handbook to enhance the capacity of the judiciary to address HIV-related legal and human rights issues
Judging the epidemic has been prepared as a resource to help judges, magistrates, arbitrators and other judicial officers throughout the world adjudicate cases involving HIV-related issues. This handbook may also be used by judicial trainers and ministries of justice to deliver educational programmes to judges and magistrates on legal issues related to HIV and human rights. It may also be relevant to advocates, lawyers and other legal practitioners, and civil society organisations (including people living with HIV) that seek to gain specific understanding of HIV-related legal issues and the potential role of the courts in advancing human rights in the context of the epidemic. Based on international legal and human rights standards, the handbook contains examples of decided cases from different jurisdictions, good-practice advice and judicial rulings on HIV-related issues.