International civil society experts launch the Oslo Declaration on HIV Criminalisation

A group of 20 expert individuals and organisations from civil society around the world working to end inappropriate criminal prosecutions for HIV non-disclosure, potential exposure and non-intentional transmission from around the world came together in Oslo, Norway on 13 February 2012 to create the Oslo Declaration on HIV Criminalisation.

The Declaration provides a clear roadmap for policymakers and criminal justice system actors to ensure a linked, cohesive, evidence-informed approach to produce a restrained, proportionate and appropriate use of the criminal law, if any, to cases of HIV non-disclosure, potential exposure and non-intentional transmission.

It is a direct response to the increasing numbers of people living with HIV who are being arrested, prosecuted and convicted and the rapid rise in the number of countries enforcing, enacting or proposing HIV-specific legislation to enable these prosecutions. This, despite a growing body of evidence suggesting that the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission is doing more harm than good in terms of its impact on public health and human rights.

The civil society meeting took place on the eve of the global High Level Policy Consultation on the Science and Law of the Criminalisation of HIV Non-disclosure, Exposure and Transmission, convened by the Government of Norway and the Joint United Nations Programme on HIV/AIDS (UNAIDS). The objective of the High Level Policy Consultation was to provide a global forum in which policymakers and other concerned stakeholders could consider their current laws and policies regarding the criminalisation of HIV non-disclosure, exposure or transmission in light of the most recent and relevant scientific, medical, public health and legal data.

Although the Oslo Declaration is not an official High Level Policy Consultation document, it supports the objective of the meeting, and encourages policymakers to review their own laws and policies, and to take any and all steps necessary to achieve the best possible outcomes in terms of justice and protection of public health in order to support effective national responses to HIV and uphold international human rights obligations.

The Declaration’s creation is led by, and includes, people living with HIV, including survivors of HIV criminalisation, and supported by committed HIV advocates from all over the world. Their expertise covers medical, social, ethical, political, human rights and judicial issues relating to HIV and the criminal law.

The Oslo Declaration, the full version of which can be downloaded here (and which includes full references to support the statements), consists of the following 10 points:

1.    A growing body of evidence suggests that the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission is doing more harm than good in terms of its impact on public health and human rights.

2.    A better alternative to the use of the criminal law are measures that create an environment that enables people to seek testing, support and timely treatment, and to safely disclose their HIV status.

3.    Although there may be a limited role for criminal law in rare cases in which people transmit HIV with malicious intent, we prefer to see people living with HIV supported and empowered from the moment of diagnosis, so that even these rare cases may be prevented. This requires a non-punitive, non-criminal HIV prevention approach centred within communities, where expertise about, and understanding of, HIV issues is best found.

4.    Existing HIV-specific criminal laws should be repealed, in accordance with UNAIDS recommendations. If, following a thorough evidence-informed national review, HIV-related prosecutions are still deemed to be necessary they should be based on principles of proportionality, foreseeability, intent, causality and non-discrimination; informed by the most-up-to-date HIV-related science and medical information; harm-based, rather than risk-of-harm based; and be consistent with both public health goals and international human rights obligations.

5.    Where the general law can be, or is being, used for HIV-related prosecutions, the exact nature of the rights and responsibilities of people living with HIV under the law should be clarified, ideally through prosecutorial and police guidelines, produced in consultation with all key stakeholders, to ensure that police investigations are appropriate and to ensure that people with HIV have adequate access to justice.

We respectfully ask Ministries of Health and Justice and other relevant policymakers and criminal justice system actors to also take into account the following in any consideration about whether or not to use criminal law in HIV-related cases:

6. HIV epidemics are driven by undiagnosed HIV infections, not by people who know their HIV-positive status. Unprotected sex includes risking many possible eventualities – positive and negative – including the risk of acquiring sexually transmitted infections such as HIV. Due to the high number of undiagnosed infections, relying on disclosure to protect oneself – and prosecuting people for non-disclosure – can and does lead to a false sense of security.

7. HIV is just one of many sexually transmitted or communicable diseases that can cause long-term harm. Singling out HIV with specific laws or prosecutions further stigmatises people living with and affected by HIV. HIV-related stigma is the greatest barrier to testing, treatment uptake, disclosure and a country’s success in “getting to zero new infections, AIDS-related deaths and zero discrimination”.

8. Criminal laws do not change behaviour rooted in complex social issues, especially behaviour that is based on desire and impacted by HIV-related stigma. Such behaviour is changed by counselling and support for people living with HIV that aims to achieve health, dignity and empowerment.

9. Neither the criminal justice system nor the media are currently well-equipped to deal with HIV-related criminal cases. Relevant authorities should ensure adequate HIV-related training for police, prosecutors, defence lawyers, judges, juries and the media.

10. Once a person’s HIV status has been involuntarily disclosed in the media, it will always be available through an internet search. People accused of HIV-related ‘crimes’ for which they are not (or should not be found) guilty have a right to privacy. There is no public health benefit in identifying such individuals in the media; if previous partners need to be informed for public health purposes, ethical and confidential partner notification protocols should be followed.

The 20 original endorsing individuals/organisations are (in alphabetial order)

AIDS Fondet, Denmark

AIDS Fonds, Netherlands

AIDS & Rights Alliance for Southern Africa (ARASA), Namibia

Edwin J Bernard, HIV Justice Network, UK/Germany

Center for HIV Law and Policy, United States

Kim Fangen, HIV Manifesto, Norway

Global Network of People Living with HIV (GNP+),Netherlands

Groupe sida Genève, Switzerland

HIV Finland, Finland

HIV Nordic, Nordic countries

HIV Norway, Norway

HIV Sweden,Sweden

International Planned Parenthood Federation (IPPF), United Kingdom

Ralf Jürgens, Consultant, HIV/AIDS, health, policy and human rights, Canada

Sean Strub, SERO Project, United States

Robert Suttle, SERO Project, United States

Swedish Association for Sexuality Education, (RFSU), Sweden

Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights (RFSL), Sweden

Terrence Higgins Trust, (THT), United Kingdom

Matthew Weait, Professor of Law and Policy, United Kingdom

To find out more or to sign on to the Oslo Declaration please visit: hivjustice.net/oslo.

Oslo Declaration on HIV Criminalisation (HJN, 2012)

Advocates working to end inappropriate criminal prosecutions for HIV non-disclosure, potential exposure and non-intentional transmission from around the world explain why they support the Oslo Declaration on HIV Criminalisation.

Video produced for the HIV Justice Network by Nick Feustel, georgetown media.

Mark S King: HIV Criminalization Face-Off

(7 min, My Fabulous Disease, USA, 2012)

What if you could witness a face-to-face confrontation between a man living with HIV and the sex partner accusing him of not revealing his status? Wouldn’t you like to be a fly on that wall? The fireworks could be mighty, as emotions raged between the furious accuser and the positive person trying to defend his actions. What might that meeting look like, exactly?

In this video, you’re about to find out.

Perpetuating Stigma (In The Life Media, US, 2012)

Public television stations across the United States aired Perpetuating Stigma, an episode from the award-winning documentary series In The Life, in February 2012. This special report investigates the injustices that arise when a person’s HIV status becomes a crime, with a focus on how women have been stigmatized and prosecuted under these laws.

Perpetuating Stigma features HIV positive women whose personal stories challenge the theory behind HIV criminalization laws and expose the reality of their impact.

“In The Life’s decision to continue coverage of HIV criminalization, specifically with a report on women, is motivated by the lack of a fair media perspective on this issue,” stated Michelle Kristel, executive director of In The Life Media.

HIV is Not a Crime

(8 min, Zero, USA, 2012)

This short film is part of Sero’s ongoing documentation of the experiences of people with HIV who have been prosecuted for “HIV crimes”. To see a growing collection of individual interviews please visit Sero’s video page.

Film by Sean Strub/Sero • Edited by Leo Herrera/HomoChic

Sweden: Campaign to change draconian, punitive policies for PLHIV aiming for Government review

In Sweden, the Communicable Diseases Act requires people with diagnosed HIV to disclose in any situation where someone might be placed at risk and to also practise safer sex (which, in Sweden, means using condoms – the impact of treatment on viral load and infectiousness is not yet considered to be part of the safer sex armamentarium.)

But in Sweden you’re damned if you do (disclose) and damned if you don’t because Sweden is one of several countries in western Europe – including Austria, Finland, Norway, and Switzerland – where people with HIV can be (and are) prosecuted for having consensual unprotected sex even when there was prior disclosure of HIV-positive status and agreement of the risk by the HIV-negative partner. Sweden uses the general criminal law for these prosecutions of which there have been at least 40 – out of an HIV population of around 5,000.

And if you think the Swedes aren’t being overly harsh, then watch the harrowing documentary, ‘How Could She?’ about a young woman, Lillemore, who was in such denial that she did not tell anyone that she was HIV-positive (including the doctors who delivered her two children). Even though both children were born HIV-free, and no-one was harmed by her non-disclosure, following the break-up of her marriage, her ex-husband reported her to the authorities and she was sentenced to 2 1/2 years in prison.

Fortunately, most of these countries with overly-draconian policies towards people with HIV are well advanced in the process of examining (and hopefully, changing for the better) such laws and policies.

Norway has set up a special committee to examine whether its current law should be rewritten or abolished: its recommendations are due in May.

Switzerland is currently revising its Law on Epidemics, to be enacted later this year, and, according to my sources, the latest version appears to be mostly consistent with UNAIDS’ recommendations.

In 2010, Austria’s Ministry of Justice conceded that an undetectable viral load is considered a valid defence, even if they say individual judges can ignore their recommendation, although much more could still be done to remove the legal onus for HIV prevention on people with HIV.

And Finland has established an expert group on HIV/AIDS within the Finnish National Institute for Health and Welfare with the aim to ensure legislative reform, and address laws and polices that reinforce stigma and discrimination.

But Sweden – which has the most HIV-related prosecutions per capita of people with HIV in Europe (and probably the world) and that’s not including the 100+ more people with HIV who have been forcibly detained and isolated under the Communicable Diseases Act – is lagging behind, and continues to enforce its ‘human rights-unfriendly’ policies.

Fortunately, civil society is fighting back. In 2010, HIV-Sweden, RFSU (the Swedish Association for Sexuality Education) and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) began a three-year campaign to raise awareness and advocate against Sweden’s over-punitive HIV-related policies.

A recent conference held just before World AIDS Day put together by the campaign and attended by police, prosecutors and politicians highlighted the many human rights concerns over Sweden’s current laws and policies. I was honoured to be one of only two non-Swedes to speak at the meeting (which was held mainly in Swedish – so a big thank you to Elizabeth, my personal “whisper” translator) – you can see the agenda and download a copy of my presentation here.

Download Google translated version of full article here

The meeting and associated campaign received a lot of press coverage, including the front page of the biggest circulation morning paper in Sweden on World AIDS Day.

Download ‘HIV, Crime and Punishment’

At the meeting, HIV Sweden, RFSL and RFSU launched an important new manifesto, ‘HIV, Crime and Punishment‘ that clearly explains what the problems are for people with HIV (and public health) in Sweden and asks for three actions from the Swedish Government:

A review of Swedish law, including the Communicable Disease Act as well as the application of the criminal law to HIV non-disclosure, exposure and transmission.
An endorsement by Sweden of the 2008 UNAIDS Policy Brief on the criminalisation of HIV transmission, which says that criminal prosecutions should be limited to unusually egregious cases where someone acted with malicious intent to transmit HIV, and succeeded in doing so.
A renewed, clear focus of Sweden’s National HIV Policy on a human rights-based approach to HIV prevention, care, support and treatment, and sex education.

Let’s hope that Sweden’s policymakers take heed. After all, how can a country which supports UNAIDS’ global efforts, and is perceived to be a global champion for human rights around the world treat people with HIV in its own country as second class citizens?

Don’t think Sweden is that bad? Check out the 2005 case of Enhorn v Sweden at the European Court of Human Rights which found that Sweden had unlawfully isolated a man with HIV for a total of seven years, a violation of Article 5 § 1 of the Convention, ‘right to liberty and security of person’.

‘HIV is not a crime’ by Sean Strub

Regular readers may be familiar with the case of Nick Rhoades from Iowa, who was arrested, prosecuted and sentenced to 25 years in prison because he didn’t disclose he was HIV-positive during a one-night stand with another man, despite using condoms and having an undetectable viral load. Following intervention from human rights groups and HIV advocates, Nick’s 25 year sentence was eventually suspended, but he remains on parole and on the sex offenders list.

Nick is one of three courageous individuals who appear in the trailer for POZ Magazine founder, Sean Strub’s, ongoing documentary project ‘HIV is not a crime‘. Sean’s film will shed light on laws and prosecutions which treat people living with HIV as second-class citizens (Sean’s term is “viral underclass”) and which are informed by stigma, not science.

Sean and I share a common understanding that, especially in the United States, but not exclusively so, HIV criminalisation is having a serious negative impact on both human rights and public health. The high number of cases in the United States is primarily because many states are still enforcing outdated HIV-specific laws many of which were drafted earlier in the AIDS epidemic when HIV-related life expectancy was poor. Reflecting moral panic and poor understanding of HIV transmission risks, their impact is still very much felt today, as Sean’s film will show.

Sean’s documentary project could not have come at a more crucial moment, as efforts are underway on a federal level in the United States (and also on a state level including in Iowa) to modernise (or, ideally, totally repeal) these draconian laws. By focusing on the impact these laws have had on people who are often erroneously characterised by such laws – and the media – as vectors of the HIV epidemic, and even sometimes as “monsters”, and showing their vulnerability and humanity, Sean’s film should help explain in very personal and human terms why these laws are wrong and why they should be repealed.

Sean is looking for funding to complete the documentary (funders, please note!) and he also tells me in an email

I’m looking for additional people to interview, including those who have been prosecuted or are facing prosecution, as well as accusers, people who filed charges or considered filed charges and others. To date I have only interviewed Americans, but I am looking for people with criminalization experiences in other countries as well.

Next week, Sean and I (along with Nick and fellow documentary interviewee, Robert Suttle) will be attending the UNAIDS Programme Coordinating Board’s thematic on HIV and enabling legal environments in Geneva and then will be briefly in London on Friday 16th. If you have a story to tell and will be in Geneva or London next week (or indeed if you are living anywhere else in the world, bearing in mind that Sean is based in the United States) please contact Sean or leave a comment below (I moderate all comments before they are published and so this is simply a way to get in touch with me – I will forward messages to Sean).

US: Positive Justice Project Members Endorse REPEAL HIV Discrimination Act

Press Release

New York, September 23, 2011 – Members of the Positive Justice Project, a national coalition dedicated to ending the targeting of people with HIV for unreasonable criminal prosecution, voiced their support for the REPEAL HIV Discrimination Act that Congresswoman Barbara Lee (D-CA) introduced today.

Download the REPEAL ACT here

The bill calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It is the first piece of federal legislation to take on the issue of HIV criminalization, and provides incentives for states to reconsider laws and practices that unfairly target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission.

The proposed bill is being met with widespread support. Ronald Johnson, Vice President for Policy and Advocacy at AIDS United (a Positive Justice Project member) says, “AIDS United supports the REPEAL HIV Discrimination Act. It’s long past time for a review of these criminal and civil commitment laws and we welcome Representative Barbara Lee’s efforts to help local and state officials understand and make needed reforms.”

Thirty-four states and two U.S. territories now have laws that make exposure or non-disclosure of HIV a crime. Sentences imposed on people convicted of HIV-specific offenses can range from 10-30 years and may include sex offender registration even in the absence of intent to transmit HIV or actual transmission.   Though condom use significantly reduces the risk of HIV transmission, most HIV-specific laws do not consider condom use a mitigating factor or as evidence that the person did not intend to transmit HIV.

For example, a man with HIV in Iowa received a 25-year sentence for a one-time sexual encounter during which he used a condom and HIV was not transmitted; although the sentence was eventually suspended, he still was required to register as a sex offender and is barred from unsupervised contact with children. People also have been convicted for acts that cannot transmit HIV, such as a man with HIV in Texas who currently is serving 35 years for spitting at a police officer.

“The Repeal HIV Discrimination Act relies on science and public health, rather than punishment, as the lead response to HIV exposure and transmission incidents. It embodies the courage and leadership needed to replace expensive, pointless and punitive reactions to the complex challenge of HIV with approaches that can truly reduce transmission and stigma,” remarked Catherine Hanssens, Executive Director of the Center for HIV Law and Policy and a founder of the Positive Justice Project

Representative Lee’s bill requires designated officials to develop a set of best practices, and accompanying guidance, for states to address the treatment of HIV in criminal and civil commitment cases. The bill also will provide financial support to states that undertake education, reform and implementation efforts.   A fact sheet created by The Center for HIV Law and Policy, AIDS United, Lambda Legal and the ACLU AIDS Project summarizes the problems with HIV criminalization and the measures the REPEAL HIV Discrimination Act takes to address them.

“The REPEAL HIV Discrimination Act will serve a critical role in educating Members of Congress and the public about the harmful and discriminatory practice of criminalizing HIV. Such state laws often originated during times when fear and ignorance over HIV transmission were widespread, and serve to stigmatize those who are living with HIV. Our criminal laws should not be rooted in outdated myths. Rep. Lee is to be commended for her tireless leadership on behalf of those who are living with HIV/AIDS,” said Laura W. Murphy, director of the ACLU Washington Legislative Office.

Scott Schoettes, HIV Project Director at Lambda Legal summarized the support of many. “Lambda Legal wholeheartedly supports the ‘REPEAL HIV Discrimination Act.’ It is high time the nation’s HIV criminalization laws were reformed to reflect the modern reality of living with HIV, both from medical and social perspectives. Except for perhaps the most extreme cases, the criminal law is far too blunt an instrument to address the subtle dynamics of HIV disclosure.”

Other PJP member statements in support of the REPEAL HIV Discrimination Act:

“The HIV Prevention Justice Alliance expresses our strong commitment to HIV decriminalization and ongoing support for Representative Barbara Lee’s Repeal HIV Discrimination Bill. We have seen how the criminalization of HIV has increased instead of reduced HIV stigma and panic. We have also seen how the criminalization of HIV further targets communities – black, Latino/a, queer, transgender, low income, sex worker, homeless, drug user – which are already disproportionately impacted by HIV/AIDS and mass incarceration. We applaud Congresswoman Lee’s courageous effort to support resiliency and dignity of HIV positive people and loved ones and affirm her continued support for prevention justice and decriminalization.”

—Che Gossett, Steering Committee Member, HIV Prevention Justice Alliance

“This is definitive legislation in the national fight to end HIV discrimination and for survivors of criminalization.”

—Robert Suttle, Member of Louisiana AIDS Advocacy Network (LAAN)

“A Brave New Day is in full support of Rep. Barbara Lee’s Anti-Criminalization bill.”

—Robin Webb, Executive Director of A Brave New Day

“We feel strongly that many such statutes violate human rights, are constitutionally vague, are irrational, and violate the laws of science in that they attempt to characterize known scientifically proven facts about transmission as irrelevant to the issue of potential damage and danger.   We feel that people’s ‘fear’ if irrational cannot provide a basis for a criminal statute or prosecution under same and that a statute cannot be both legal and illogical.”

—David Scondras, Founder/CEO, Search For A Cure

For a list of organizations supporting the REPEAL HIV Discrimination Act, click here.

Verdict on a Virus (IPPF, UK, 2011)

This short film produced by The International Planned Parenthood Federation is a commentary from a selection of experts about the criminalisation of HIV transmission in England and Wales. It brings together a selection of policy makers, programmers, advocates, academics and people living with HIV to inform the public debate.

New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions

From UNAIDS front page today.

Feature Story: New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions

The UK charity National AIDS Trust (NAT) launched a report on 4 August 2011, entitled Estimating the likelihood of recent HIV infection – implications for criminal prosecution, which explores the validity and meaning of the Recent Infection Testing Algorithm HIV tests, or RITA tests, within the context of criminal prosecutions of HIV transmission.

The report, primarily aimed at professionals working in the criminal justice system and HIV specialists who may be called on as expert witnesses in criminal HIV transmission cases, calls for caution about the potential use of RITA results to determine timing of HIV infection.

About RITA and its potential use in criminal law context

RITA tests estimate the likelihood that a person found to be HIV-positive has been infected recently, usually within the previous six months. To date, the United Kingdom is the only country reported to routinely return RITA results to newly diagnosed patients.

As criminal law in the UK allows for the prosecution of people for transmitting HIV to another person, the report underlines the importance that RITA tests and their limitations be fully understood and not misused in criminal proceedings. The report underlines that while there have been no reported instances of use of RITA results in courts to attempt to prove timing of HIV transmission and consequently the identity of the person who transmitted HIV, this may happen in the near future.

No test can conclusively state when an individual acquired HIV

“No scientific test is able to conclusively state when an individual acquired HIV,” said Dr Cate Hankins, Chief Scientific Adviser to UNAIDS. “It is important to be cautious, follow clear protocol, and understand the limitations of RITA results when delivering them to patients or using them within a criminal law context.”

According to the report, proving HIV transmission in the context of criminal law cases requires the use of a combination of scientific evidence, medical records and testimony to establish the facts, timing and direction of HIV transmission.

“Scientific advances such as RITA testing are extremely welcome when estimating the recency of HIV infection on a population level, especially as late diagnosis is a huge issue,” said Ms Deborah Jack, Chief Executive of National AIDS Trust. “However, it is crucial that the limitations of RITA tests are fully understood and are not used out of context, for example during criminal proceedings.”

As RITA tests are designed to work at the population level (based on averages) rather than at the individual level, taking into account significant rates of false RITA test results in individuals, the report draws the conclusion that RITA tests are not reliable as evidence of recent HIV infection for individuals in the context of criminal proceedings.

Better understanding of HIV science in the context of criminal law

The NAT report comes weeks ahead of an expert meeting on the scientific, medical, legal and human rights aspects of the criminalization of HIV transmission and exposure organized by UNAIDS in Geneva from 31 August to 2 September 2011.

The meeting will bring together leading scientists and medical experts on HIV together with legal and human rights experts. Participants will examine relevant scientific and legal evidence and concepts relating, among others, to harm, risk, intent and proof, and their conceptualization/application in the context of criminalization of HIV exposure and transmission.

The meeting is part of UNAIDS’ work towards halving the number of countries with punitive laws and practices around HIV transmission, sex work, drug use, or homosexuality that block effective AIDS responses by 2015.