PWN’s Barb Cardell’s webinar on Molecular HIV Surveillance and its implications for marginalized communities living with HIV, including intersections with HIV criminalization.
Beyond Blame 2018: Challenging HIV Criminalisation was a one-day meeting for activists, advocates, judges, lawyers, scientists, healthcare professionals and researchers working to end HIV criminalisation. Held at the historic De Balie in Amsterdam, immediately preceding the 22nd International AIDS Conference (AIDS 2018), the meeting was convened by HIV JUSTICE WORLDWIDE and supported by a grant from the Robert Carr Fund for Civil Society Networks.
The Meeting Report and Evaluation, written by the meeting’s lead rapporteur, Sally Cameron, Senior Policy Analyst for the HIV Justice Network, is now available for download here.
The meeting discussed progress on the global effort to combat the unjust use of the criminal law against people living with HIV, including practical opportunities for advocates working in different jurisdictions to share knowledge, collaborate, and energise the global fight against HIV criminalisation. The programme included keynote presentations, interactive panels, and more intimate workshops focusing on critical issues in the fight against HIV criminalisation around the world.
The more than 150 attendees at the meeting came from 30 countries covering most regions of the world including Africa, Asia and the Pacific, Eastern Europe and Central Asia, Latin and North America and Western Europe. Participation was extended to a global audience through livestreaming of the meeting on the HIV JUSTICE WORLDWIDE YouTube Channel, with interaction facilitated through the use of Twitter (using the hashtag #BeyondBlame2018) to ask questions of panellists and other speakers. See our Twitter Moments story here.
Following the meeting, participants were surveyed to gauge the event’s success. All participants rated Beyond Blame 2018 as good (6%), very good (37%), or excellent (57%), with 100% of participants saying that Beyond Blame 2018 had provided useful information and evidence they could use to advocate against HIV criminalisation.
A video recording of the entire meeting is available on HIV JUSTICE WORLDWIDE’s YouTube Chanel.
- The experience of HIV criminalisation was a poor fit for individual’s actions and the consequences of those actions, particularly where actions included little or no possibility of transmission or where courts did not address scientific evidence
- The consequences of prosecution for alleged HIV non-disclosure prior to sex are enormous and may include being ostracised, dealing with trauma and ongoing mental health issues, loss of social standing, financial instability, multiple barriers to participation in society, and sex offender registration
- Survivors of the experience shared a sense of solidarity with others who had been through the system, and were determined to use their voices to create change so that others do not have to go through similar experiences
- Becoming an advocate against HIV criminalisation is empowering and helps to make sense of individuals’ experiences
- The movement against HIV criminalisation has grown significantly over the last decade but as the movement has grown, so has understanding of the breadth of the issue, with new cases and laws frequently uncovered in different parts of the world.
- As well as stigma, there are multiple structural barriers in place enabling HIV criminalisation, including lags in getting modern science into courtrooms and incentives for police to bring cases for prosecution.
- Community mobilisation is vital to successful advocacy. That work requires funding, education, and dialogue among those most affected to develop local agendas for change.
- Criminalisation is complex and more work is required to build legal literacy of local communities.
- Regional and global organisations play a vital role supporting local organisations to network and increase understanding and capacity for advocacy.
- There have already been many advocacy successes, frequently the result of interagency collaboration and effective community mobilisation.
- It is critical to frame advocacy against HIV criminalisation around justice, effective public health strategy and science rather than relying on science alone, as this more comprehensive framing is both more strategic and will help prevent injustices that may result from a reliance on science alone.
- There have been lengthy delays between scientific and medical understanding of HIV being substantiated in large scale, authoritative trials, and that knowledge being accepted by courts.
- Improving courts’ understanding that effective treatment radically reduces HIV transmission risk (galvanised in the grassroots ‘U=U’ movement) has the potential to dramatically decrease the number of prosecutions and convictions associated with HIV criminalisation and could lead to a modernisation of HIV-related laws.
- Great care must be exercised when advocating a ‘U=U’ position at policy/law reform level, as doing so has the potential to deflect attention from issues of justice, particularly the need to repeal HIV-specific laws, stop the overly broad application of laws, and ensure that people who are not on treatment, cannot access viral load testing and/or who have a detectable viral load are not left behind.
- Courts’ poor understanding of the effectiveness of modern antiretroviral therapies contributes to laws being inappropriately applied and people being convicted and sentenced to lengthy jail terms because of an exaggerated perception of ‘the harms’ caused by HIV.
- HIV-related stigma remains a major impediment to the application of modern science into the courtroom, and a major issue undermining justice for people living with HIV throughout all legal systems.
- HIV prevention, including individuals living with HIV accessing and remaining on treatment, is as much the responsibility of governments as individuals, and governments should ensure accessible, affordable and supportive health systems to enable everyone to access HIV prevention and treatment.
- New education campaigns are required, bringing modern scientific understanding into community health education.
- Continuing to work in silos is slowing our response to the HIV epidemic.
- HIV criminalisation plays out in social contexts, with patriarchal social structures and gender discrimination intersecting with race, class, sexuality and other factors to exacerbate existing social inequalities.
- Women’s efforts to seek protections from the criminal justice system are not always feminist; they often further the carceral state and promote criminalisation.
- Interventions by some purporting to speak on behalf of women’s safety or HIV prevention efforts have delivered limited successes because social power, the structuring of laws and the ways laws are administered remain rooted in patriarchal power and structural violence.
- Feminist approaches must recognise that women’s experiences differ according to a range of factors including race, class, types of work, immigration status, the experience of colonisation, and others.
- For many women, HIV disclosure is not a safe option.
- More work is needed to increase legal literacy and support for local women to develop and lead HIV criminalisation advocacy based on their local context.
- When women affected by HIV have had the opportunity to consider the way that ‘protective’ HIV laws are likely to be applied, they have often concluded that those laws will be used against them and have taken action to advocate against the use of those laws.
At the end of the meeting, participants were asked to make some closing observations. These included:
- Recognising that the event had allowed a variety of voices to be heard. In particular, autobiographical voices were the most authentic and most powerful: people speaking about their own experiences. This model which deferred to those communicating personal experiences, should be use when speaking to those in power.
- Appreciating that there was enormous value in hearing concrete examples of how people are working to address HIV criminalisation, particularly when working intersectionally. It is important to capture these practical examples and make them available (noting practical examples will form the focus of the pending Advancing HIV Justice 3 report).
- Understanding that U=U is based on a degree of privilege that is not shared by all people living with HIV. It is vital that accurate science informs HIV criminalisation as a means to reduce the number of people being prosecuted, however, people who are not on treatment are likely to become the new ‘scapegoats’. It is important that we take all opportunities to build bridges between U=U and anti-HIV criminalisation advocates, to create strong pathways to work together and support shared work.
- Noting the importance of calling out racism and colonialism and their effects.
- Observing that more effort is required to better understand and improve the role of police, health care providers and peer educators to limit HIV criminalisation.
- Exploring innovative ways to advocate against HIV criminalisation, including community education work through the use of art, theatre, dance and other mechanisms.
- Concluding that we must challenge ourselves going forward. That we must make the circle bigger. That next time we meet, we should challenge ourselves to bring someone who doesn’t agree with us. That we each find five people who aren’t on our side or don’t believe HIV criminalisation is a problem and we find ways and means (including funding) to bring them to the next Beyond Blame.
M.O.H. against criminalization of HIV
The criminalization of the transmission of HIV in Samoa is a threat to public health. This is one of the highlights by the Ministry of Health indicated in their 98 page National HIV, AIDS, and STI Policy 2017-2022 report that was obtained by the Samoa Observer.
According to the prevention segment of the report, it points to some countries where criminal law is being applied to those who transmit or expose others to HIV infection.
“The Ministry of Health does not recommend nor endorse legislative measures to criminalize the transmission of HIV that is unintentional and views such measures as threats to public health.
“There is no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission.
“Rather, such application risks undermine public health and human rights.
“Because of these concerns, UNAIDS urges governments to limit criminalization to cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it.
“Willful spread of HIV has been so rarely documented worldwide that it is largely hypothetical,” the report says.
According to the MOH Policy, since there are no cases have been processed in Samoa or Australia and New Zealand Commonwealth case law, legally it is urban myth and no legislation exists regarding the legal handling of such a case.
“Presently Samoan legal priorities regarding HIV, AIDS, and STI’s are primarily concerned with protecting the individual rights and confidentiality of people as well as safeguarding public health.
“Prosecuting a case of willful spread of HIV would necessarily involve addressing legal criteria in Sections 120-121 of the Crimes Act 2013.
“Supplying evidentiary support for a claim would entail 1) proving a person knew their HIV status prior to exposing other individual(s), 2) the individual did not disclose their HIV status to exposed person(s), 3) and the exposure resulted in HIV infection.
“Any action taken against to quarantine and accuse a case of a wilful spread of HIV would fall under the authoritative powers of MoH within Part 4 Section 36 of the Health Ordinance 1959 “Isolation of persons likely to spread infectious diseases” as well as Section 37 , Offenses in regards to infectious diseases,” according to the report.
The M.O.H. Policy also emphasized that all rights of people living with AIDS, national and international, must not be violated in the investigation, prosecution and sentencing of individuals involved in such a potential case.
The report can be downloaded here
Evidence- and rights- based laws and policies are key to ending AIDS
On the five-year anniversary of the Global Commission on HIV and the Law’s groundbreaking report, former members of the Commission and partners commend 88 countries for advancing the report’s recommendations and urge other countries to enact progressive legislation and protect human rights
NEW YORK – Five years ago, a landmark report published by the Global Commission on HIV and the Law urged governments to promote laws and policies grounded in evidence and human rights in order to turn the tide against AIDS. This week, members of the Commission and representatives of UN Member States, civil society, academia and international organizations came together to assess the progress made in advancing the report’s recommendations, look at the barriers that remain and discuss opportunities for further progress.
The Commission – comprised of former heads of state, human rights, public health and legal experts – released a report that has led a multi-year effort to ensure that national laws, policies and practices that impede the AIDS response are overturned. Laws that stigmatize people living with and vulnerable to HIV perpetuate discrimination and block people from seeking health services and undermining public health goals.
“HIV is still one of the deadliest diseases in the world and it’s unforgivable that national governments have failed to address legislation that fuels the AIDS pandemic,” said former Commissioner Michael Kirby, a former Justice of the High Court of Australia. “Laws that criminalize HIV are anti-science, unjust and unconstructive.”
It’s not all bad news – the Commission also pointed out several success stories, noting that legislation based on science and human rights has helped advance the global commitment in the Sustainable Development Goals to end HIV for good and leave no one behind. Today, there’s still reason to be optimistic.
“It is time for countries to think proactively about designing laws and policies that will help end the HIV epidemic,” said former Commissioner Bience Gawanas, a lawyer and human rights expert. “We’ve seen that some countries, including Ghana and Mozambique, have been able to improve HIV responses by adopting more progressive policies. If we’re going to defeat HIV, other countries need to do the same.”
Since the release of the Commission’s report, the United Nations Development Programme (UNDP) and its partners have helped advance the report’s recommendations in 88 countries. Several countries have conducted comprehensive assessments of laws, policies and practices affecting people with HIV and have changed legislation as a result. National conversations on the rights of people living with and vulnerable to HIV have led countries to reform discriminatory practices against people living with HIV. Judges, civil society organizations and partners have been instrumental in helping to overturn discriminatory legislation and counter HIV stigma.
The Commission’s recommendations contributed to several success stories over the last five years. These include:
- After analyzing its laws and legal practices around HIV, health and human rights, Mozambique revised its laws on criminalizing unintentional HIV transmission.
- In Pakistan, protections for people living with HIV were included in the Sindh Province HIV/AIDS Control Treatment and Protection Act.
- Seychelles decriminalized consensual same-sex relationships.
- A national dialogue in Peru highlighted the need for a gender identity law, which spurred the development of a draft Gender Identity Bill that was presented to the National Assembly in December 2016.
- The High Court of Botswana ruled that foreign prisoners living with HIV are entitled to receive life-saving antiretroviral treatment.
- In Ghana, partners developed a stigma and discrimination reporting system that allows key populations, including people living with HIV, to file formal complaints about human rights abuses and seek redress.
“Equality, inclusion and non-discrimination are at the heart of the 2030 Agenda for Sustainable Development,” said Achim Steiner, UNDP Administrator. “Laws and policies that protect rather than punish, combined with programmes that reduce stigma and discrimination, exist and need to be scaled up if we are to achieve our goal of ending the AIDS epidemic by 2030.”
By replacing legal practices rooted in stigma with legislation based on science, these countries are among the frontrunners taking steps to protect the human rights of people living with and affected by HIV.
“It’s incredible to see the progress that some countries have made over the past five years,” said Michel Sidibé, Executive Director of UNAIDS. “They’ve taken important strides to protect the rights of women and people living with and vulnerable to HIV.”
These countries have shown us that laws and policies grounded in evidence and human rights, combined with programs that reduce stigma and discrimination, can help accelerate progress to end the AIDS epidemic by 2030.
About the Global Commission on HIV and the Law:
The Global Commission on HIV and the Law was launched in June 2010 by UNDP on behalf of the Joint UN Programme on HIV/AIDS (UNAIDS) to provide global leadership on HIV-related legal and human rights issues by analyzing what is known about the interactions between the legal environments, human rights and HIV; fostering evidence-informed public dialogue on the need for rights-based law and policy in the context of HIV; and identifying clear and actionable recommendations with a concrete plan for follow-up. (www.hivlawcommission.org)Contact informationSangita Khadka, Communications Specialist, UNDP Bureau for Policy and Programme Support, email: email@example.com tel: +1 212 906 5043
Lok Sabha passes ‘historic’ bill ensuring equal rights to HIV-affected people
The Lok Sabha on Tuesday passed a crucial bill that ensures equal rights to the people affected by HIV and AIDS in terms of getting treatment, jobs or admissions to educational institutions.
Moving the Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) (Prevention and Control) Bill, 2017 for passage, health minister JP Nadda said the government stood for free treatment to HIV patients.
The Rajya Sabha had passed the bill last month.
The “historic” and “people centric” legislation will strengthen rights of people infected with HIV, Nadda said.
The legislation, he added, has provisions to safeguard the property rights of HIV positive people.
“Every HIV infected or affected person below the age of 18 years has the right to reside in a shared household and enjoy the facilities of the household”, Nadda said.
Further, the bill prohibits any individual from publishing information or advocating feelings of hatred against HIV positive persons and those living with them.
Nadda said the government will also promote research to check the spread of HIV virus and come out with aggressive strategies, especially in high risk areas.
Opposition members had several suggestions and observations during the Bill’s passage, TMC member Ratna De Nag regretted that stigma related to HIV remains intense . P Ravindra Babu (TDP) emphasized that the stigma associated with the disease could not be eradicated by laws alone. Varaprasad Rao (YSR Congress) pitched for insurance cover for the affected people with the premium being paid by the government.
Heena Gavit (BJP) said couples affected with HIV should be given the right to adopt children.
The new HIV and AIDS Bill will work to reduce stigma and discrimination
Two decades ago India was considered a hotspot and emerging centre of the world’s HIV epidemic. Since then, India has made tremendous progress in controlling HIV. Through its continuing efforts including targeted programmes and support of affected communities, India has demonstrated that the course of an epidemic can be reversed by public education, mass awareness and wide scale availability of testing and treatment.
Today, approximately 21 lakh people are living with HIV, as per government estimates. The adult prevalence is in the range of 0.3%, of which around 40% are women. Despite this enormous progress and the availability of testing and treatment, stigma and discrimination against HIV affected individuals in India remains widespread.
India made some efforts at stigma reduction in the early part of the epidemic. Yet social attitudes do not transform easily. The HIV AIDS bill approved by the Cabinet and pending approval in Parliament is an important step in ensuring that the progress made against HIV is not halted and discrimination against HIV affected individuals is reduced.
How is this being done? It’s important to reflect on the many progressive aspects of the bill. To start with, numerous provisions of this bill ensure government accountability and commitment into providing HIV prevention, testing, treatment and care to those at risk. Why is this necessary? Because every government irrespective of political affiliations must commit to fighting HIV. For the first time, the bill brings together a human-rights perspective to public health, and makes antiretroviral treatment a right of HIV/AIDS patients. The central and state governments are duty bound to provide for treatment and also arrange for the management of risk reduction of vulnerable populations. This will ensure that in the future no Indian has to struggle for diagnosis or treatment.
Considering widespread stigma and the need for privacy, the bill also mandates that no HIV test, medical treatment, or research can be conducted on a person without their informed consent. This ensures that those affected by HIV have the right to privacy and confidentiality. The bill also mandates that no person can be compelled to disclose their HIV status except with informed consent, and if required by a court order.
The bill also addresses discrimination in everyday life through numerous provisions especially at the workplace and within communities. It prohibits discrimination against HIV positive persons and those affected in numerous aspects. These include the denial, termination, discontinuation or unfair treatment with regard to employment and in educational establishments, health care services, residing or renting property, standing for public or private office, and provision of insurance (unless based on actuarial studies). The bill also prohibits the requirement for HIV testing as a pre-requisite for obtaining employment or accessing health care or education.
The intention is to ensure that no HIV infected individual is the subject of discrimination and there is legal accountability and recourse for them. The bill also mandates the appointment of an ombudsman in every state to inquire into complaints related to the violation of the Act and the provision of health care services. This ombudsman will submit reports every six months stating the number and nature of complaints received and the actions taken on them.
Populations who are most vulnerable to HIV/AIDS are female sex workers (FSWs), men who have sex with men (MSMs), transgenders and intravenous drug-users. The bill seeks to protect these high-risk groups from discrimination, both through administration of treatment for their infections as well as improving their access to welfare schemes and services.
The bill also mandates that cases relating to HIV positive persons shall be disposed off by the court on a priority basis. If an HIV infected or affected person is a party in any legal proceeding, it shall be conducted so as to supress the identity of the person, and restrain any person from publishing information that discloses the identity of the applicant. Also when passing any order with regard to a maintenance application filed by an HIV infected or affected person, the court shall take into account the medical expenses incurred by the applicant.
While social change will take time and stigma will not end immediately, this bill is a step in the right direction. It is a much needed and long awaited measure that will work to reduce stigma and discrimination towards people living with HIV. It will also ensure enhanced access to and privacy for those seeking care.
The foundation of every significant legislation is that it must safeguard civil liberties. This is exactly what this bill intends to do. It intends to ensure that those living with HIV do so with dignity and respect enjoying all their rights as citizens.
In the long-term, our goal is an India where no new HIV infection occurs and where living with HIV is neither a matter of fear or of shame.
Delhi, Gaborone, New York – The International Treatment Preparedness Coalition (ITPC) and its global coalition partners are outraged following a decision by the Indian Parliament to absolve itself from responsibility of providing treatment for people living with HIV in India. The HIV/AIDS (Prevention & Control) Bill was passed in the upper house of the Indian Parliament yesterday, 21 March 2017. The Bill states that the government will provide treatment for people living with HIV ‘as far as possible’ (see full text below) absolving the government from its responsibility to protect the right to life.
“This is a step backwards for human rights, and a tremendous blow for all people living with HIV in India,” said Gregg Gonsalves, Chair of ITPC-Global. “It is extremely concerning that the India government has given itself this loophole at a time when the government program is in disarray, with the worst period of antiretroviral drug stock outs.”
Networks of people living with HIV and other civil society organizations lobbied Members of Parliament to amend the draft Bill that was first tabled in February 2014. In response to civil society concerns, senior Members of Parliament urged the Union Minister JP Nadda to make the amendment. HIV treatment activists were stunned when these parliamentarians withdrew their amendment at the last minute, thus giving way to the Bill passing into legislation.
“As the biggest supplier of generic medicines to the developing world, India could be the leading light in HIV treatment, an example to the rest of the world,” said Solange Baptiste, ITPC-Global’s Executive Director. “Instead this new Bill fails to enshrine the rights of its own people. I fear it’s an omen of things to come. We, HIV treatment activists, will be watching and monitoring to make sure the Indian government upholds its responsibility to all its citizens living with HIV.”
“Nothing in the world is more important than securing treatment for me, and my community of people living with HIV,” said Loon Gangte Regional Coordinator ITPC-South Asia. “I earnestly appeal to the government to delete the loophole ‘as far as possible’ and assure our right to life”.
HIV/AIDS Bill Final Text
The provision for HIV treatment in Section 14 of the HIV/AIDS Bill, reads as follows:
1. The measures to be taken by the Central Government or State Government under section 13 shall include the measure for providing, as far as possible, Anti-Retroviral and Opportunistic Infection Management to people living with HIV or AIDS.
2. The Central Government shall issue necessary guidelines in respect of protocols for HIV and AIDS relating to Anti-Retroviral Therapy and Opportunistic Infection Management which shall be applicable to all persons and shall ensure their wide dissemination.
About International Treatment Preparedness Coalition
International Treatment Preparedness Coalition (ITPC) is a global coalition of HIV treatment activists formed in 2003 to respond to the needs of communities worldwide. The global network is driven by individual activists, peer support groups, grassroots networks, community-based organizations, and non-governmental organizations. Each of our partners share our values and vision and come together to address issues around access to treatment issues in their countries, regions and at the global level.
A bill before the California Senate would change laws that make it a felony to expose someone to HIV, recognizing advances in the science of HIV treatment and prevention. The proposed legislation received strong support at a recent hearing at the state Capitol.
Proponents say Senate Bill 239 would modernize existing laws in accordance with the latest research, promote public health, and reduce discrimination and stigma against people living with HIV.
“These felony laws were passed during the dark days of the epidemic, when people were talking about quarantining those living with HIV,” bill co-author Senator Scott Wiener (D-San Francisco) told the Bay Area Reporter. “The laws single out people with HIV for uniquely harsh criminal treatment for the simple act of having sex – even if there’s no risk of transmission. HIV is a health issue, not a criminal issue, and it’s time to repeal these discriminatory laws.”
Existing laws make it a felony punishable by up to eight years in prison for a person with HIV to expose another person through unprotected sex if the HIV-positive person knows they are infected, does not disclose their status, and acts with the intent to infect the other person – regardless of whether infection actually occurred. It is also a felony under certain circumstances for an HIV-positive individual to donate blood, organs, or semen to an HIV-negative person. Current laws treat HIV transmission more harshly than other serious communicable diseases.
A study from the UCLA School of Law found that around 800 people in California came in contact with the criminal justice system due to their HIV status between 1988 and 2014, in most cases related to sex work. Black and Latino people and women were disproportionately affected.
“Since [these laws] were originally written the realities of what it means to have HIV, as well as the possibility of transmitting it, have changed completely, with new medications when taken regularly normalizing life expectancy and eliminating the possibility of transmission,” Dr. Edward Machtinger, director of the UCSF Women’s HIV Program, said at the March 8 hearing. “This new reality requires a reassessment of the public health implications of HIV-related legislation.”
Bill would amend state codes
As the B.A.R. previously reported, Wiener and Assemblyman Todd Gloria (D-San Diego), both gay men, introduced SB 239 at a February 6 news conference at Strut, the San Francisco AIDS Foundation’s health and wellness center for gay, bi, and trans men.
The March 8 briefing, hosted by the Legislative LGBT Caucus, featured testimony from people living with HIV as well as LGBT, public health, and civil rights advocates.
“It’s time to really change from a fear-based approach to a science-based approach,” Gloria said at the hearing. “A couple of states have beaten us to taking this action, but I think if California can do it, certainly the rest of the country can take this step as well.”
Assemblyman David Chiu (D-San Francisco) and lesbian Assemblywoman Susan Talamantes Eggman (D-Stockton) co-authored the legislation. Co-sponsors include the American Civil Liberties Union of California, Black AIDS Institute, Equality California, Lambda Legal Defense and Education Fund, and Positive Women’s Network-USA, all of which are part of the Californians for HIV Criminalization Reform Coalition.
SB 239 would amend sections of the state Health and Safety Code and Penal Code to make transmission of a communicable disease – not singling out HIV – a misdemeanor if a person knows they are infected, acts with the intent to transmit, engages in conduct that poses a substantial risk of transmission, and the other person does in fact become infected.
If passed, the proposal would overturn previous convictions under the old law, as well as expunge related criminal records and allow a person serving time to have their sentence dismissed. It would also repeal laws that require people convicted of prostitution to be tested for HIV and increase penalties if they test positive. A penalty enhancement for HIV-positive people convicted of sexual assault would not be changed.
Wiener’s communications director, Jeff Cretan, told the B.A.R. that the bill is scheduled for a hearing before the Public Safety Committee March 28, after which it would go before the Appropriations Committee and then to the full Senate for a vote.
Advocates support reform
Reform proponents say SB 239 would bring laws in line with current science, which shows that HIV-positive people who are on antiretroviral treatment with an undetectable viral load can live long and healthy lives and do not transmit the virus to others. In addition, the advent of PrEP, which reduces the risk of HIV infection by more than 90 percent if taken consistently, has changed the meaning of “unprotected” sex.
“We know that people with undetectable levels of virus are very, very unlikely to transmit [HIV],” San Francisco Supervisor Jeff Sheehy, a gay man and the first out HIV-positive person to sit on the board, told the B.A.R. “Many people at risk for contracting the virus are using PrEP to prevent getting infected. These laws, which should never have been passed in the first place, fail to acknowledge these new realities.”
Proponents contend that HIV criminalization laws do not promote public health, but rather discourage people from getting tested, seeking treatment, and disclosing their status to sex partners.
“HIV criminalization laws not only perpetuate discrimination against people living with HIV, they paradoxically discourage people from getting tested, since the laws create greater liability for those who know their status,” Eric Paul Leue, executive director of the Free Speech Coalition, a trade group for the adult entertainment industry that is a member of the CHCR coalition, told the B.A.R.
Existing laws can also discourage vulnerable people with HIV from reporting sexual abuse and violence, according to Naina Khanna, executive director of Positive Women’s Network-USA.
“A myth has been perpetuated that women are somehow protected by these laws, [but] they don’t protect us in any way,” Khanna said at the hearing. “These laws deter people from disclosing their status, they deter access to testing, they may deter people from seeking treatment, and consequently they actually increase risk for everybody. Policing and criminalization targets people of color, targets those who are unstably housed, folks who are homeless and on the streets, and people who are trans and gender non-conforming.”
SB 239 is part of a national and global movement to reform laws that target people living with HIV.
“SB 239 will go a long way toward eliminating a bias in the law and bringing California to the forefront in the effort to combat HIV-related stigma, discrimination, and criminalization,” Sero Project executive director Sean Strub told the B.A.R. “We can prosecute HIV or we can prevent it, but we can’t do both.”
Published in the Bay Area Reporter on March 23rd, 2017
APA’s commitment to decriminalizing HIV
In 2016, the APA joined the ranks of medical and professional organizations opposing HIV criminalization laws (Positive Justice Project Consensus Statement on the Criminalization of HIV in the U.S., n.d.). Since 1986, these laws have criminalized nondisclosure of HIV and engagement in “risk” behaviors (sexual activity, needle sharing, and in some instances spitting and biting) for those who are aware of their HIV status (Lehman, Carr, Nichol, Ruisanchez, Knight, Langford, et al., 2014). Between 1986-2011, 67 HIV-specific criminal laws were enacted in 32 states and two U.S. territories (Lehman, 2014), many or most of which do not consider the level of risk and/or intentionality of the act.
Since the beginning of the AIDS epidemic, hundreds of people living with HIV have been arrested for behaviors posing little, if any, risk of HIV transmission (CDC, 2015). It is estimated that 20-25 percent of prosecuted cases related to HIV exposure/transmission have involved spitting, biting or external exposure to bodily fluids (e.g., throwing bodily fluids) which pose negligible transmission risk (CDC, 2015; Patel, Borkowf, Brooks, Lasry, Lanksy & Mermin, 2014; Pretty, Anderson & Sweet, 2009).
Many HIV-specific criminalization laws were passed before research showed that:
- Consistent condom use significantly reduced the spread of HIV (Pinkerton & Abramson, 1997).
- Adherence to antiretroviral therapy results in undetectable viral loads which dramatically reduce HIV transmission (Dieffenbach & Fauci, 2009 [PDF, 119KB]).
- Increased efficacy of post-exposure prophylaxis and pre-exposure prophylaxis and are efficacious in preventng HIV (Celum & Baeten, 2012; van der Straten, Van Damme, Hbere & Bangsberg, 2012; Young, Arens, Kennedy, Laurie & Rutherford, 2007).
People diagnosed with HIV in states with HIV-specific criminal laws must disclose their HIV serostatus to sex partners and injection needle sharing partners and refrain from various sexual behaviors, regardless of actions taken to minimize HIV risk transmission (e.g., consistent condom use, using clean needles, consistent adherence to combination antiretroviral therapy [ART]). In the rare instances in which intentional transmission of HIV is determined, states may use general criminal laws or communicable disease laws to prosecute persons accused of intentionally trying to transmit HIV instead of HIV-specific criminal laws.
Not only do most HIV criminalization laws ignore the level of risk or intentionality of the action, they also do not reflect the current, and considerable, evidence base on HIV transmission (CDC, 2015), and in many instances, they counteract public health efforts to decrease HIV transmission by increasing stigma and discrimination (Valdiserri, 2002). As a result, in 2014, the Civil Rights Division of the Department of Justice issued a “Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors (PDF, 117KB).”
This newsletter will present a human face to HIV criminalization laws and discuss the public health implications and the role that psychological research and practice can play in helping to address the individual and social impact of these laws. By emphasizing this issue, APA strongly encourage states with HIV criminalization laws to repeal such laws and provide psychologists practicing in relevant states with guidance on the impact that HIV-specific laws may have on their clients and the general public’s health.
For more information on APA’s resolution, visit the Background Information on the Resolution Opposing HIV Criminalization webpage.
Sen. Scott Wiener and Assembly member Todd Gloria Announce Bill to Modernize Discriminatory HIV Criminalization Laws
APLA Health and other organizations join in support of bill to reform outdated laws that have not been updated since the 1980s and ‘90s
Today, California Sen. Scott Wiener (D-San Francisco) and Assembly member Todd Gloria (D-San Diego) introduced a bill to modernize laws that criminalize and stigmatize people living with HIV. Assembly member David Chiu is also a co-author of the bill, SB 239. SB 239 would amend California’s HIV criminalization laws, enacted in the 1980s and ’90s at a time of fear and ignorance about HIV and its transmission, to make them consistent with laws involving other serious communicable diseases.
The bill is co-sponsored by: APLA Health, the ACLU of California, Black AIDS Institute, Equality California, Lambda Legal, and Positive Women’s Network – USA. The organizations are part of Californians for HIV Criminalization Reform (CHCR), a coalition of people living with HIV, HIV and health service providers, civil rights organizations, and public health professionals dedicated to ending the criminalization of HIV in California. San Francisco Supervisor Jeff Sheehy also attended the announcement.
“These laws are discriminatory, not based in science, and detrimental to our HIV prevention goals,” Sen. Wiener says. “They need to be repealed. During the 1980s—the same period when some proposed quarantining people with HIV—California passed these discriminatory criminal laws and singled out people with HIV for harsher punishment than people with other communicable diseases. It’s time to move beyond stigmatizing, shaming, and fearing people who are living with HIV. It’s time to repeal these laws, use science-based approaches to reduce HIV transmission (instead of fear-based approaches), and stop discriminating against our HIV-positive neighbors.”
SB 239 updates California law to approach transmission of HIV in the same way as transmission of other serious communicable diseases. It also brings California statutes up to date with the current understanding of HIV prevention, treatment, and transmission. Specifically, it eliminates several HIV-specific criminal laws that impose harsh and draconian penalties, including for activities that do not risk exposure or transmission of HIV. It would make HIV subject to the laws that apply to other serious communicable diseases, thereby removing discrimination and stigma for people living with HIV, and maintaining public health.
“It’s time for California to reevaluate the way it thinks about HIV and to reduce the stigma associated with the disease,” Assemblymember Gloria says. “Current state law related to those living with HIV is unfair because it is based on the fear and ignorance of a bygone era. With this legislation, California takes an important step to update our laws to reflect the medical advances which no longer make a positive diagnosis equal to a death sentence.”
“These laws are outdated and only serve to fuel the spread of HIV in our communities. They also disproportionately impact people of color and women,” APLA Health CEO Craig E. Thompson says. “Our understanding of HIV has changed significantly since the 1980s and our laws need to change to reflect that. Updating these laws will reduce stigma and prevent people from going to prison simply because they are living with a chronic disease. We appreciate the leadership of Senator Wiener and Assemblymember Gloria on this critical social justice issue.”
In addition to the organizations co-sponsoring the bill, other CHCR members supporting the legislation include the Los Angeles LGBT Center, the Los Angeles HIV Law and Policy Project, the Transgender Law Center, Mexican American Legal Defense and Education Fund, the Free Speech Coalition, Sex Workers Outreach Project, and Erotic Service Providers Legal, Education, and Research Project.
Published on February 7, 2017 in AplaHealth
Activists renew call for HIV law amendment
They argue that the law contains clauses that could deter all the benefits in the fight against the scourge.
According to this group, the law instead instills fear in communities about HIV disclosure and also fuels stigmatization.
Earlier this year, some 60 civil society organizations across the country challenged the criminalization of HIVin Uganda as well as other ‘harmful’ provisions in the Act.
Dora Kichoncho Musinguzi, the executive director Uganda Network on Law and Ethics, said the salient features that are scanned out in the law which they consider discriminatory are: Clauses 21, 41 and 43 of the Act that seek to criminalize HIV, particularly intentional transmission.
The Act would require mandatory disclosure of one’s HIV status, failure of which would be regarded as “criminal”, and attempting to or, intentionally transmitting the virus.
Failure to use a condom where one knows their HIV status would constitute a criminal offence, making them liable for prosecution.
The provisions in the HIV Act, according to Kichonco, do not only stigmatize and discriminate against people living with HIV, but also deter communities from seeking HIV services such as HIV testing and subsequently HIV treatment.
“It is five months since we filed the petition. The government has not responded to our case. This is procedurally wrong and negates justice,” she said.
Kichoncho said if the law continues “as we could see”, it would heighten stigmatization of people living with HIV and that many of the targets such as 90% of people knowing their status, 90% of those who with HIV are on treatment and 90% with suppressed viral load set by the country might not be achieved.
“The law has been counterproductive to all the achievements Uganda has made.”
She said the legal environment in Uganda is not conducive and human rights have not been respected. “Laws that criminalize and stigmatize people with HIV must be repealed.”
Meanwhile, Dorothy Nassolo, communications officer of Forum of People Living with HIV/Aids Networks in Uganda said there is a crisis the country might not stand.
She said a number of patients have been hacked to death because they have been discovered by their spouses for taking ARVs covertly.
National Forum of People Living with HIV/AIDS officer Milly Katana said the most affected group by the law are women through gender-based violence at home.
Katana said it’s better for Uganda to look at other alternatives for instance biomedical tools, medical male circumcision and condoms. –
Published in New Vision on Dec 1, 2016