U.S.: Clinton Promises She’ll Reform HIV Criminalization Laws in her opening presentation at 2nd HIV is Not a Crime conference

Tonight, speaking via a pre-recorded video to attendees of the HIV is Not a Crime Training Academy, Hilary Clinton says if she wins the Presidential election, she will work to reform outdated, stigmatizing HIV criminalization laws. Clinton thanked attendees for their work, saying that efforts like HIV is Not a Crime “lift us all up.”

Saying we have “come a long way” since the early days of the AIDS epidemic, Clinton acknowledged, “We still have long way to go.” She spoke about how HIV disproportionately impacts “communities of color, transgender people, gay and bisexual men and young people, around the world.”

Prior to Clinton’s speech, attendees had the pleasure of hearing from Kerry Thomas, talking via phone from an Idaho correctional center, where he’s serving a 30-year sentence. Thomas said he carries a photo with him from the first HIV is Not a Crime conference, held two years ago. Positive and thankful, Thomas nevertheless affirmed that the state court has dismissed his case, but promised “we’re appealing down the road.” Thomas shared his appreciation for outside support and thanked prison officials for allowing him to participate in events like this and serve on the Sero Project Board.

Bryan Jones (who, like Thomas was featured in our special on HIV in prison) described being open about his HIV status in prison as “somewhat suicidal,” and asked if things were different for Thomas.

Thomas replied that it hadn’t always been easy, but he’d recently become more vocal about his status, because, “At some point, someone has to say ‘That’s enough!’ and take on these things.”

Naina Khanna, Positive Women’s Network’s executive director, follwed Thomas, remarking how important his involvement was because, “We should be taking leadership from the people most impacted by these laws.”

PWN sponsored a post-welcome documentary screening of Consent, in which eight women examine the problems inherent in using sexual assault law to prosecute alleged non-disclosure. Khanna’s seemed to hint at that topic when she noted,

“Some of these laws have been put on the books to protect women” She added that sometimes, “women have been complicit in criminalization,” which is one reason the Positive Women’s Network is determined to be involved in HIV-decriminalization.

Khanna then spoke passionately about America being “a country built on back of people brought here forcibly,” arguing, “Our economy is based on people being policed and criminalized,” and that people with HIV weren’t the only targets: but also trans folks, immigrants, people of color and other marginalized groups.

Following Clinton’s televised speech, a panel formed on stage consisting of people who have been prosecuted and parents of several men currently imprisoned under HIV criminalization laws.

The most compelling was a young black man from Oklahoma who told of being arrested and charged with a felony for allegedly sneezing on someone. When placed into custody, he claims the police put a bag over his head, and — allegedly because he responded, “What the fuck?” — he was charged with disorderly conduct.

Most of his charges have since been dropped, but he goes to court July 1st on the disorderly charge. Since being arrested, he said he has received death threats and has had to move several times. He told the audience that he had gone jogging for the first time in years without being worried he might be harassed.

His voice breaking, he added, “I appreciate you not looking at me like I’m dirty.”

Originally published in hivplusmag.com

At SADC-PF parliamentarians meeting in South Africa, Patrick Eba of UNAIDS says HIV criminalization is a setback to regional AIDS efforts

The criminalisation of HIV simply undermines the remarkable global scientific advances and proven public health strategies that could open the path to vanquishing AIDS by 2030, Patrick Eba from the human rights and law division of UNAIDS told SADC-PF parliamentarians meeting in South Africa.

Restating a remark made by Justice Edwin Cameron of the Constitutional Court of South Africa, Eba said: “HIV criminalisation makes it more difficult for those at risk of HIV to access testing and prevention. There is simply no evidence that it works. It undermines the remarkable scientific advances and proven public health strategies that open the path to vanquishing AIDS by 2030.”

SADC-PF has undertaken, as part of its commitment to advocacy for sexual reproductive health rights, an ambitious 90-90-90 initiative in east and southern Africa, with the help of the media, to ensure that all people living with HIV should know their status by 2020; that by 2020 90 percent of all people diagonised with HIV will receive sustained antiretroviral therapy; and that by 2020 90 percent of all people living with HIV and receiving antiretroviral therapy will have viral suppression.

He implored parliamentarians from SADC-PF member states to advocate for laws that would decriminalise HIV after he noted several African countries had HIV-specific criminal laws that resulted in arrests and prosecutions of those convicted of spreading HIV intentionally.

Eba said calls for the criminalisation of intentional or wilful spreading of HIV stem from the fact there are high rates of rape and sexual violence, and most notably in post-conflict countries such as the DRC there exist promises of retribution, incapacitation, deterrence and rehabilitation.

He gave an example of one case of miscarriage of justice involving a woman in Gabon who was wrongfully arrested after a man accused her of having infected him with HIV, but after spending several months in detention she was actually found to be HIV-negative after she went for testing.

Eba appealed to SADC-PF parliamentarians to consider decriminalisation of HIV on the basis that antiretroviral treatment (ART) has a 96 percent rate in reducing the risk of HIV transmission.

“End criminalisation to end AIDS,” he implored SADC-PF parliamentarians who included Agnes Limbo of the RDP, Ida Hoffmann of Swapo and Ignatius Shixwameni of APP, all delegated by Namibia to the conference.

Eba also referred to the motion unanimously adopted in November 2015 that was moved by Duma Boko of Botswana and that was seconded by Ahmed Shaik Imam of South Africa who reaffirmed SADC member states’ obligation to respect, fulfil and promote human rights in all endevours undertaken for the prevention and treatment of HIV.

That motion had also called on SADC member states to consider rescinding and reviewing punitive laws specific to the prosecution of HIV transmission, exposure and non-disclosure. It also reiterated the role by parliamentarians to enact laws that support evidence-based HIV prevention and treatment interventions that conform with regional and international human rights frameworks.

Eba said since HIV infection is now a chronic treatable health condition, no charges of “murder” or “manslaughter” should arise and that HIV non-disclosure and exposure should not be criminalised in the absence of transmission, and that significant risk of transmission should be based on best available scientific and medical evidence.

On the other hand, he said, there is no significant risk in cases of consistent condom use practice or other forms of safer sex and effective HIV treatment.

The SADC-PF joint sessions also addressed the issues of criminalisation of termination of pregnancy. The joint sessions ended on Thursday with a raft of recommendations for the ministerial meetings.

Originally published in New Era.

New report shows HIV criminalisation is a growing, global concern but advocates are fighting back

A new report released today shows that HIV criminalisation is a growing, global phenomenon. However, advocates around the world are working hard to ensure that the criminal law’s approach to people living with HIV fits with up-to-date science, as well as key legal and human rights principles.

Click on this link to read or download Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation.

What do we mean by ‘HIV criminalisation’?

HIV criminalisation describes the unjust application of the criminal law to people living with HIV based solely on their HIV status – either via HIV-specific criminal statutes, or by applying general criminal laws that allow for prosecution of unintentional HIV transmission, potential or perceived exposure to HIV where HIV was not transmitted, and/or non-disclosure of known HIV-positive status.

Such unjust application of the criminal law in relation to HIV is (i) not guided by the best available scientific and medical evidence relating to HIV, (ii) fails to uphold the principles of legal and judicial fairness (including key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof), and (iii) infringes upon the human rights of those involved in criminal law cases.

What is the impact of HIV criminalisation?

Understanding the potential negative impact of HIV criminalisation on public health is critical to making informed policy decisions.

The last few years have seen increasing interest among researchers in the area of HIV criminalisation and a push into new areas of enquiry to examine the impacts of the unjust application of criminal law.

The report summarises a body of research which shows that instead of delivering a public health benefit, HIV criminalisation is a poor public health strategy, exacerbating racial and gender inequalities and negatively impacting a number of key areas including: testing; disclosure; sexual behaviour; and healthcare practice.

How many countries around the world have HIV criminalisation laws?

Since our last report, we found an increase in the number of countries that specifically allow for HIV criminalisation: these could be stand-alone HIV-specific criminal laws, part of omnibus HIV laws, or criminal and/or public health laws that specifically mention HIV.

Some of this increase is due to laws enacted since 2013 in Botswana, Cote d’lvoire, Nigeria, Uganda and Veracruz state (Mexico), and some is due to improved reporting and research methodology.

Our analysis shows that a total of 72 countries have adopted laws that specifically allow for HIV criminalisation, either because the law is HIV-specific, or because it names HIV as one (or more) of the diseases covered by the law. This total increases to 101 jurisdictions when the HIV criminalisation laws in 30 of the states that make up the United States are counted individually.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_6

How many countries have prosecuted people living with HIV?

Prosecutions for HIV non-disclosure, potential or perceived exposure and/or unintentional transmission have now been reported in 61 countries. This total increases to 105 jurisdictions when individual US states and Australian states / territories are counted separately.

Of the 61 countries, 26 applied HIV criminalisation laws, 32 applied general criminal or public health laws, and three (Australia, Denmark and United States) applied both HIV criminalisation and general laws.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_7

Where have prosecutions recently taken place?

We found reports of at least 313 arrests, prosecutions and/or convictions in 28 countries during the report period, covering 1 April 2013 to 30 September 2015.

Of note, we are now able to include data on reported prosecutions in Belarus and Russia, which are likely to have been taking place at least since the enactment of a Belarusian public health law in 1993 and a Russian HIV criminalisation law in 1995.

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

• Russia (at least 115) • United States (at least 104) • Belarus (at least 20) • Canada (at least 17) • France (at least 7) • United Kingdom (at least 6) • Italy (at least 6) • Australia (at least 5) • Germany (at least 5).

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_8

HIV criminalisation in sub-Sarahan Africa of increasing concern

Where there was no HIV criminalisation at the start of the 21st century, 30 sub-Saharan African countries have now enacted overly broad and/or vague HIV-specific criminal statutes.

Most of these statutes are part of omnibus HIV-specific laws that also include protective provisions, such as those relating to non-discrimination in employment, health and housing. However, they also include a number of problematic provisions such as compulsory HIV testing and involuntary partner notification, as well as HIV criminalisation.

During the period covered by this report four countries in sub-Saharan Africa passed new HIV criminalisation laws: Botswana, Cote d’lvoire, Nigeria and Uganda.

Very few countries in Africa are now unaffected by problematic HIV criminalisation laws. The rise of reported prosecutions in Africa during this period (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on this continent, is especially alarming.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_9

Where has advocacy improved legal environments?

Important and promising developments in case law, law reform and policy have taken place in many jurisdictions, most of which came about as a direct result of advocacy.

During the report period, although an additional 13 jurisdictions in nine countries proposed new HIV criminalisation laws, seven of these were not passed, primarily due to swift and effective advocacy against them at an early stage. Advocacy in another ten jurisdictions in seven countries challenged, improved or repealed HIV criminalisation laws.

The legal environment relating to HIV criminalisation has improved in a small number of countries in sub-Saharan Africa, most notably in Kenya. On 18 March 2015, Kenya’s High Court ruled that its HIV criminalisation provision – Section 24 of the HIV Prevention and Control Act 2006 – was unconstitutional because it was vague, overbroad and lacking in legal certainty, particularly in respect to the term ‘sexual contact’.

The Court also found it contravened Article 31 of the Kenyan Constitution which guarantees the right to privacy because the law created an obligation for people with HIV to disclose their status to their ‘sexual contacts’, with no corresponding obligation for recipients of such sensitive medical information to keep it confidential.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_10

Using science as an advocacy tool

Increased knowledge about reduced infectiousness due to antiretroviral therapy has led to advocacy that resulted in a number of jurisdictions revising or revisiting their criminal laws or prosecutorial policies relating to HIV criminalisation, although progress has been frustratingly slow.

Following the ‘Swiss statement’, published in January 2008, a growing number of courts, government ministries and prosecutorial authorities have accepted antiretroviral therapy’s impact on reducing the risk of both HIV exposure and transmission.

However, scientific advances alone will neither ‘end AIDS’ nor end HIV criminalisation. Although the impact of antiretroviral therapy on infectiousness is an important advocacy tool, it must be remembered that many people with HIV do not have access to treatment (or are unable to achieve an undetectable viral load when on treatment) and that everyone has a right to choose not to know their status and/or start treatment and should not be stigmatised nor considered ‘second class citizens’ should they wish to delay diagnosis or antiretroviral therapy.

More work required

Despite the many incremental successes of the past few years, much more work is required to strengthen advocacy capacity. This is why a coalition of seven organisations launched HIV Justice Worldwide in April 2016.

We also need to be aware that HIV criminalisation does not exist in vacuum, and is often linked to punitive laws and policies that impact sexual and reproductive health and rights, especially those aimed at sex workers and/or men who have sex with men and other sexual minorities.

And, bearing in mind the stigma faced by those with, for example, hepatitis C and concerns over the sexual transmission of the Ebola and Zika viruses, as we move forward to eliminate – or modernise – HIV criminalisation laws, we must ensure that our work does not inadvertently lead to the further criminalisation of other communicable and/or sexually transmitted infections.

Click on this link to read or download Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation.

A note about the limitations of the data

The data and case analyses in this report covers a 30-month period, 1 April 2013 to 30 September 2015. This begins where the original Advancing HIV Justice report – which covered the 18-month period, 1 September 2011 to 31 March 2013 – left off. Our data should be seen as an illustration of what may be a more widespread, but generally undocumented, use of the criminal law against people with HIV.

US/Canada: Elton John AIDS Foundation on why they support civil society organisations working to end HIV criminalisation

Australia: Queensland people living with HIV organisation, QPP, issues position statement on HIV criminalisation (press release)

Queensland Positive People (QPP) is a peer-based advocacy organisation which is committed to actively promoting self-determination and empowerment for all people living with HIV (PLHIV) throughout Queensland.

Below is their press release issued on 6 April 2016 in the light of the recent High Court ruling related to intent in HIV transmission cases.

Position Statement

The criminal law is an ineffective and inappropriate tool to address HIV non-disclosure, exposure or transmission. International best practice acknowledges that public health frameworks are best placed to encourage a shared responsibility for HIV transmission, and public health interventions seek to effect change in risk-taking behaviour among those who have difficulty taking appropriate precautions to prevent the transmission of HIV.

Urgent legal review of State and National guidelines for determining if an individual poses a reckless risk of HIV transmission is required following the scientific acceptance that PLHIV on treatment with an undetectable viral load pose a negligible risk of transmitting HIV via sexual intercourse. Despite scientific consensus on this issue, Australian criminal law has failed to acknowledge the contemporary science of HIV transmission and instead relies on incorrect, out of date and stigmatising perspectives of HIV that do not acknowledge that with proper adherence to HIV medication, it is a manageable chronic illness with a full life expectancy.

To explain why Australian criminal law lags behind United Nation recommendations and criminalises HIV transmission, Cipri Martinez, President of the National Association of People with HIV Australia (NAPWHA) states “stigma, fear and discriminatory perceptions of HIV influence the decision to proceed with criminal charges– a statement clearly evidenced by a lack of criminal prosecution or media attention regarding the transmission of other notifiable conditions such as syphilis or hepatitis.” HIV is treatable, but criminal charges perpetuate the inaccurate position that HIV is still a death sentence and therefore deserving of a severe punishment.

Current Status

A decision has been handed down in the High Court regarding a Queensland criminal HIV transmission case.

Whilst inappropriate to comment on the specifics of the case, the NAPWHA and Queensland Positive People (QPP) highlight that the trying of HIV transmission through the courts is a complex and fraught issue.

The overly broad use of the criminal law has far reaching negative impacts upon the HIV response. In line with UNAIDS guidance, NAPWHA and QPP urge that any application of the criminal law in the context of HIV must not undermine public health objectives.

Cipri Martinez states that “The use of the criminal law in responding to HIV transmission has been widely regarded as a blunt and ineffective tool with adverse implications for public health. In line with the recommendations of the UN Global Commission on HIV and the Law, the criminal law should only be reserved for cases where an individual exhibits clear malicious intent to transmit HIV with the purpose of causing harm.”

“There are alternatives to the criminal justice system to address HIV transmission or allegations that a person living with HIV is placing other people at risk of HIV, such as public health legislation” Martinez said.

Public health interventions are intended to prioritise education; support behaviour change; provide management as required; and actively utilise affected communities as a far more effective alternative to punitive and stigmatising legal sanctions.

NAPWHA and QPP support HIV prevention strategies being driven by an evidence-based, best practice model of public health interventions.

Criminalising HIV transmission sends unbalanced messages about the shared responsibility for prevention, creates disincentives for people to get tested and does, in fact, discourage disclosure of HIV status. These outcomes undermine prevention efforts and actually increase the risk of further HIV transmission.

Criminalising transmission does not acknowledge the complex factors that may impact an individual’s ability to disclose status or take the necessary precautions to prevent HIV transmission.

QPP President, Mark Counter agrees with NAPWHA’s position, saying “Public health interventions acknowledge the complex factors unique to each case, such as power imbalances, impairment, discrimination or other social determinants of health that may confuse or limit an individual’s ability to prevent transmission.”

National and State HIV strategies have identified the shared goals of achieving virtual elimination of HIV transmission in Australia by 2020.

“We are all working towards the shared goal of reducing HIV transmissions. The only way we are going to achieve this goal is by continuing to implement evidence-based human rights responses to HIV. These responses include educating the public about HIV and empowering people to avoid transmission or live successfully with HIV. The broad use of the criminal law does not help us achieve these goals” Counter says.

We need to be expanding programs which have been proven to reduce HIV transmission whilst protecting the human rights of people living with HIV and those who are HIV negative. Further, we need to encourage and empower people living with an unknown status to get tested and to ensure HIV prevention services are available to all that need them.

One of the unfortunate side effects of criminal prosecutions is the misinformed and stigmatising media that can accompany the reporting of these cases.

“We call on media outlets to appropriately report on HIV transmission cases with facts and not fear. Inaccurate statements not only undermine our efforts to educate the public about HIV, but also create an environment of fear for people living with HIV or people thinking about testing. It is vital that we encourage people to test – not discourage or frighten them from testing” Counter said.

For assistance in reporting appropriately on HIV, journalists should refer to the Australian Federation of AIDS Organisations HIV Media Guide.

US: American Psychological Association adopts resolution opposing HIV criminalisation

The American Psychological Association (APA) has adopted an evidence-informed resolution on HIV criminalisation in the United States.

It was developed with feedback from the APA Committee on Legal Issues and the HIV Medicine Association – who themselves issued a Policy Statement on HIV Criminalization in 2015 – along with the Sero Project and The Center for HIV Law and Policy.

According to the background document:

We believe an APA resolution will 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 patients, clients, and the general public’s health.

The resolution, adopted by the Council of Representatives in February 2016 and published on March 15th, can be read in full on the APA website.

It includes the following key messages:

THEREFORE be it resolved that APA opposes HIV criminalization and recommends the repeal or reform of these laws to eliminate HIV-specific criminal penalties with the exceptions of 1) a person with known HIV committing a sex crime where there is risk of transmission, and 2) a person with known HIV who has the intent to transmit the virus and is engaged in a behavior with a high risk of transmission;

BE IT FURTHER RESOLVED that laws that are not in alignment with the current scientific evidence on HIV transmission should be repealed;

BE IT FURTHER RESOLVED that laws that criminalize behaviors posing low or negligible risk for HIV transmission should be repealed or reformed and better aligned with contemporary scientific evidence regarding HIV transmission probabilities for specific behaviors and the efficacy of risk-reduction activities (e.g., consistent condom use);

BE IT FURTHER RESOLVED that laws that target PLHIV and engender harsher sentencing should be repealed;

BE IT FURTHER RESOLVED that laws that increase likelihood of incarceration for PLHIV should be repealed;

BE IT FURTHER RESOLVED that laws that undermine national HIV prevention efforts should be repealed;

BE IT FURTHER RESOLVED that criminalization laws that increase the risk of and intimate partner violence to, and control of women and other vulnerable people with HIV should be repealed;

BE IT FURTHER RESOLVED that laws that specifically target and criminalize PLHIV should be repealed;

BE IT FURTHER RESOLVED that laws that discriminate and stigmatize against PLHIV should be repealed;

BE IT FURTHER RESOLVED that psychologists practicing in states with HIV-specific criminalization laws are encouraged to better understand the impact of these laws on their patients who have HIV or who may be at elevated risk for HIV infection.

Stop the Prague Public Health Authority’s persecution and intimidation of people living with HIV [Press release]

Pan-European Networks of communities of people living with and affected by HIV, doctors and scientists call upon the Government of the Czech Republic to immediately stop the Prague Public Health Authority’s persecution and intimidation of people living with HIV, and to return to evidence-based and proven practices in HIV prevention, testing and care in the Czech Republic.

Brussels, 19 February 2016 – The signatories of this open letter, representing communities of people living with, and affected by HIV, doctors and scientists addressing HIV and co-infections in Europe, are extremely concerned that the Prague Public Health Authority has initiated a police investigation into the sex lives of 30 men living with HIV on the sole grounds that these men have been diagnosed with a sexually transmitted infection (STI).

We understand that the Czech police are currently conducting investigations and are considering pressing charges against these men claiming that they have violated the provisions of Sections 152 and 153 of the Czech Criminal Code.

There is no evidence that punitive approaches to regulating the consensual sexual behaviour of people with living HIV are an effective HIV prevention or public health tool, but there is evidence that such approaches can be counterproductive by further stigmatising people with HIV, sending those in need of testing and treatment underground, harming individual and public health.

In addition, the release of medical information to the police appears to be a grave violation of personal freedoms of individuals living in the Czech Republic. The initiation of criminal prosecution against people living with HIV for alleged intentional gross bodily harm – despite the lack of a single complainant – raises grave concerns regarding the inappropriate application of criminal law to people living with HIV.

We also understand that a number of non-governmental organizations have recently spoken out against the acts of the Prague Public Health Authority and subsequent police investigation and they will approach the Czech liaison at the UN High Commissioner for Human Rights. Please also note that the responsible UNAIDS representative has already been informed and will receive further briefing from us.

With this letter we express our outrage at these human rights violations, and support the groups within the Czech Republic who initially raised objections and are working to support both people with HIV and the public health of all those living in the country.

Our main objections to the recent development are based on several arguments:

It violates the fundamental human right to personal integrity and privacy (Art 7 Sec. 1 of the Charter of Fundamental Rights and Freedoms), and breaches the Czech Republic’s international obligations under the existing National HIV/AIDS Strategy;
It is counterproductive to public health, ignoring well established WHO and UNAIDS recommendations on appropriate use of public health and criminal law as it relates to HIV. Evidence shows that criminalisation of HIV non-disclosure, potential or perceived exposure or non-intentional transmission deter people from getting tested and force them to hide their HIV status and/or sexual orientation, thus reducing opportunities for treatment which greatly reduces infectiousness.
There is a substantial body of evidence to show that the overly broad HIV criminalisation, in any form, is harmful for both individuals and society as it leads to increased latency of the epidemic, deters people from getting tested and treated, and thus ultimately contributes to a growing epidemic. We recognize that there has been a constant and alarming increase in the rate of new HIV infections in Europe in the last ten years. However, the active discrimination and violation of the human rights of any group of society will not contribute to the curbing of the epidemic.
The proposed prosecution of people living with HIV for alleged intentional spread of infectious diseases, or in fact the transfer of any health-related data of individual from the health care system to law enforcement organisations is potentially a violation of the European Union’s Data Protection Directive.

We demand that the Government of the Czech Republic adheres to the international principles and treaties, and scientific evidence universally accepted in the practice of HIV prevention, and we also demand that the current level of HIV care in the country is maintained and improved to assure at-risk groups feel that getting tested for HIV is and should be a reasonable decision for them. Nothing is as effective in linking to and retention in care than disseminating the right information, and fighting stigma and discrimination against people living with HIV, or any other groups such as men having sex with men. The active discrimination and legal persecution of people with HIV is in diametrical opposition to this evidence.

The signatories will continue to support local non-governmental organisations and other actors in their efforts to prevent HIV criminalization becoming a public health policy. We call on the Government of Czech Republic to ensure that the Prague Public Health Authority reverses this policy and ends police investigations of people with HIV simply for being diagnosed with an STI and instead relies on good public health practice as the most effective strategy to deal with HIV/AIDS.

Speaking on behalf of millions of people living with and affected by HIV across Europe, as well as experts in HIV science, public health and human rights, the signatories are ready to provide advice, guidance and the collection of good practices relating to HIV prevention to the government.

Contact:

HIV Justice Network: Edwin J Bernard, edwin@hivjustice.net

European AIDS Treatment Group: Tamás Bereczky on tamas.bereczky@eatg.org

Download and share the letter (with references). Also available on the EATG website

Open Letter to Prague Public Health Authority

Footnote: At the request of Czech AIDS Society a number of organisations representing European networks of communities of people living with and affected by HIV, doctors and scientists wrote today to head of Prague’s Public Health Authority to raise our concern about the initiation of a police investigation into the sex lives of 30 men living with HIV on the sole grounds that these men have been diagnosed with a sexually transmitted infection (STI).

We hereby would like to stress that disseminating the right information, and fighting stigma and discrimination against people living with HIV, or any other groups such as men having sex with men has proved have proved to be effective in responding to the epidemic, to link to and retain persons in care. The active discrimination and legal persecution of people with HIV is in diametrical opposition to this evidence.

Letter to Dr. Zdeňka Jágrová, Hygienicka, Head of the Prague Public Health Authority

Kenya: KELIN to challenge President Kenyatta's plan to keep a list of every child and breastfeeding/expectant mothers living with HIV

Czech Republic: Prague Public Health Authority initiates criminal prosecutions of 30 gay men living with HIV following an STI diagnosis

Late last month, Prague’s Public Health Authority initiated criminal investigations against 30 gay men living with HIV that had been diagnosed with a sexually transmitted infection (STI) during the previous year.

The Public Health Authority appear to believe that since these men acquired an STI this is proof that they must have practiced condomless sex and have therefore violated Sections 152 and 153 of the Czech Criminal Code, which a 2005 Supreme Court ruling confirmed could be used to prosecute any act of condomless sex (including oral sex) by a person living with HIV as “spread of infectious diseases”.

There are no individual complainants in these cases.

The Czech AIDS Society responded to the publication of initial media reports on January 26th, with a press release that highlighted:

They have already begun to provide legal counseling to several of these men.
Most of them have an undetectable viral load and/or only have sex only with other men living with HIV (known as ‘serosorting’).
Being diagnosed with an STI does not, in and of itself, prove that condomless sex took place because most STIs can be acquired even when condoms are used.
Fear of punishment will lead to people living with HIV and at risk of a sexually transmitted infection not getting tested or treated.

“Czech AIDS Society has long struggled against the criminalisation of the private life of people living with HIV in cases where there is no HIV transmission. We believe that the HIV epidemic must be fought not through repression, but through the treatment which, in most cases, reduces the viral load of HIV-positive patients to undetectable levels thus eliminating the risk of transmission.”

They went on to make a number of media appearances pointing out that applying criminal law to potential HIV exposure does not reduce the spread of HIV, undermines HIV prevention efforts, promotes fear and stigma, punishes behaviour that is not blameworthy and ignores the real challenges of HIV prevention in the Czech Republic.

They also published a second press release, entitled “Professional failure of public health officials” on February 10th that was strongly critical of the actions of Prague’s Public Health Authority, noting that they have greatly undermined trust in the confidentiality of the public health system which will likely lead to an increase in new HIV infections.

On February 12th, the head of Prague’s Public Health Authority, Ms. Zdenka Jagrova (pictured above), issued a statement in response, suggesting that the Authority is legally obliged to initiate such criminal complaints and that “it would be a professional failure if [we] did not do so…

[We] did not check sexual orientation of HIV-positive people who got infected with another contagious, sexually transmitted disease. It is not an attack on the gay community, but in 2014 no HIV-positive woman in Prague was diagnosed with a sexually transmitted disease. A public health authority is obliged to protect the public health of the population and must act in the same manner as in case of other infectious diseases, for instance TB….This campaign aiming at questioning our practices is clearly intended to assert alleged rights of a minority at the expense of the rights of the majority, i.e. in particular the right to health, irrespective of who and how threatens the health. We consider attempts to create a privileged group that would be excluded from generally defined responsibilities very dangerous.”

A number of organisations representing communities of people living with and affected by HIV are now working together with UNAIDS to support the Czech AIDS Society, including the circulation of a Change.org petition.

It appears that none of the cases have yet been passed to the Public Prosecution office for formal prosecution. However, the investigation has set a dangerous precedent and we understand that public health departments in other regions of the Czech Republic are now considering following the Prague example.

UK: Law Commission considers HIV criminalisation in great depth, but recommends no change for HIV/STI prosecutions in England & Wales, pending a wider review

Following a scoping consultation which ran from autumn 2014 to spring 2015, the Law Commission (of England and Wales) has now published its report containing their final recommendations to the UK Government.

It recommends the adoption of a modified version of a 1998 draft Bill to replace the outdated Offences Against the Person Act 1861.

However, whereas the 1998 Bill only criminalised intentional disease transmission, their recommendation is to keep the existing law relating to HIV and other serious diseases ((based on Dica and Konzani and clarified through prosecutorial policy and guidelines) which criminalises reckless as well as intentional disease transmission, pending a wider review.

Both in the scoping consultation paper and in this report, we have considered the criminalisation of disease transmission at great length. Many consultees supported fundamental reform of the law in this area. However, we conclude that the issues were more complex than time or space allowed without delaying the main aim of reforming the law of offences against the person. For this reason, we suggest modifications to the draft Bill to preserve the present position pending a wider review involving more input from healthcare professionals and bodies.

The full report, (chapter six: ‘transmission of disease’ is excerpted in full below), includes a detailed discussion of their proposals and the responses of 35 concerned stakeholders (most of them experts in law, public health and human rights. The HIV Justice Network was one of them, and our opinions are quoted throughout.)

The entire report is of interest not just to those working on this issue in England & Wales, but globally. It rehearses, in great detail, nearly all of the arguments for and against HIV (and other STI) prosecutions, and finds that “there is a strong body of opinion, especially in the medical profession and groups concerned with HIV and sexually transmissible infections, that the transmission of these diseases should never be criminal unless done intentionally.”

The report helpfully summarises the five main arguments against overly broad HIV criminalisation:

(1) an offence of reckless transmission encourages people to choose not to be tested, so as not to have the awareness of risk that might constitute recklessness;

(2) it discourages openness with (and by) medical professionals, because they may have to give evidence against their patients;

(3) it encourages people to think that disclosure of HIV status is always a duty, and that if a potential partner has not mentioned his or her status then he or she is not infected;

(4) because of the difficulty of proving transmission, the existence of the offence leads to very wide-ranging and intrusive investigations affecting a great many people, out of all proportion to the small number who will be found deserving of prosecution; and

(5) the whole topic of HIV/AIDS is affected by an atmosphere of fear (often irrationally so), and there is still an undesirable stigma against people.

Nevertheless, although the report states that “it would be preferable to revert to the law as it stood in 1998” when prosecutions were not possible and to use the draft 1998 Bill as it stands (which would only criminalise the intentional transmisison of disease), it comes to a more conservative conclusion.

The discussion of this issue has almost exclusively concerned the transmission of disease by consensual sexual intercourse, and the transmission of HIV in particular. (Also, most of the evidence for the harmful effects of criminalisation is drawn from countries where there are specific offences concerned with HIV and STIs, and may not be relevant to the use of general offences of causing injury.) The same reasoning may well not apply to other diseases and other means of transmitting them, but the draft Bill excludes disease as a whole.

For these reasons, on the evidence we have we do not feel justified in recommending a change to the position in existing law, in which the reckless transmission of disease is in principle included in an offence of causing harm. If there is to be a change, this should follow a wider review which compares the position in different countries and gives full consideration to the transmission of diseases other than by sexual means.

Of note, and of global relevance, following a great deal of discussion (and a broad range of consultation responses) regarding whether not to create an HIV/STI-specific law and/or broaden the scope of the current law to include non-disclosure and/or potential or perceived exposure, the Law Commission is clear.

We do not recommend the creation of specific offences concerned with disease transmission, either in relation to disease in general or in relation to HIV and STIs in particular: this too would require a wider review of all the available evidence. Nor do we recommend an offence of putting a person in danger of contracting a disease, or an offence of failing to disclose an infection to a sexual partner.

Law Commission Scoping Report: TRANSMISSION OF DISEASE (November 2015)