(15 min, Zimbabwe Lawyers For Human Rights, Zimbabwe, 2014)
This video explains why overly broad HIV criminalisation harms women, and highlights the issue with an interview with a woman who is fighting her conviction for allegedly infecting her husband.
Australia’s only HIV-specific criminal law, section 19A of the Crimes Act in the state of Victoria, has now been repealed. This is an exciting step forward for those of us working to turn around Victoria’s poor record on criminalisation of HIV. This blog entry outlines the process we used to achieve this historic reform.
This story starts just before the 2010 International AIDS Conference in Vienna, at the first-ever HIV criminalisation pre-conference meeting, co-organised by the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV (GNP+) and NAM (who host the HIV Justice Network). Attending this meeting and hearing about the incredible work being done in this area was the inspiration for starting a joint advocacy project to address the issue here in Victoria. The partners in that project are the two largest HIV organisations in our state, Living Positive Victoria and the Victorian AIDS Council.
Our objectives were to achieve a set of prosecutorial guidelines, on a similar model to those adopted by the Crown Prosecution Service for England and Wales, and the repeal of s 19A. Although our initial focus was on the guidelines, with the announcement that Melbourne would host the 2014 International AIDS Conference, we decided to shift our focus to the repeal of s 19A. We felt that by focusing on a law that was manifestly out of step with best practice, we could use the conference to embarrass our legislators into action. With a state election due three months after AIDS 2014, we felt confident we could make political headway with the issue.
Section 19A makes it a criminal offence to intentionally transmit a ‘very serious disease’, which is defined to mean only HIV. It carries a maximum 25-year prison sentence, making it one of the most serious crimes on the Victorian statute book. It was enacted in 1993, following a high-profile case in which a prison officer in NSW was stabbed with a hypodermic syringe, and a number of cases in which blood-filled syringes were used in armed robberies.
Although the law was passed, supposedly, to deal with this kind of ‘syringe bandit’ assault, in practice it has been applied exclusively against people accused of sexual transmission of HIV. Although only a handful of cases have ever been prosecuted (and none successfully), s 19A has often been charged, or used as a threat against people accused of reckless transmission or endangerment. Its presence on the statute book has sent an unwelcome and false signal that people with HIV are a danger to public safety.
Additionally, we were armed with a solid evidence base – particularly the reports of UNAIDS and the Global Commission on HIV and the Law, which specifically criticise HIV-specific laws like s 19A.
We made a point of telegraphing our intentions to the government and opposition political parties well ahead of the conference. We developed a policy brief setting out the case for repeal of the section, and sought dialogue with both parties in the months before the conference. We wanted to give them every opportunity, at a time when the eyes of the world would be on us, to take action that would generate international attention and goodwill.
Our approach to the government was initially rebuffed, with a curt reply that they had no intention of changing the law. The Labor opposition, which had opposed the law in 1993, was more welcoming and we were able to explain our position at a number of meetings leading up to the conference. We were unable to get a commitment for action, but we were confident that both sides knew what we were asking for.
We gathered together a strong coalition of supporting organisations who agreed to back our call. As well as the HIV sector, we had support from the broader civil sector (organisations focused on human rights, mental health, gay and lesbian rights) and from the legal sector, particularly the criminal bar. We had the backing of the AIDS 2014 chairs. We spent a good deal of time before the conference drafting talking points that enabled us to get our media messaging clear, and thinking about ways to get our message out to conference delegates already being showered with slogans, messages and leaflets.
As the conference approached, however, we had no commitment from either party. We were taken by surprise when the health minister used a speech opening the ‘Beyond Blame’ HIV criminalisation pre-conference to make a commitment to ‘amend section 19A to make it non-discriminatory.’ Given the blunt ‘not interested’ we had received a couple of months earlier, this was a stunning turnaround, but still fell short of what we wanted – full repeal of section 19A. Worse, the way the announcement was phrased suggested the scope of the law could in fact be widened to include other diseases like hepatitis C – the last thing we wanted.
As the conference week progressed, we continued to press our case and to highlight the need for repeal. We garnered positive press coverage following a media conference held on the opening day (even the tabloid press gave us a sympathetic hearing). The sight of thousands of protesters marching through the streets of Melbourne with signs reading ‘#REPEAL19A’ made the evening news. We publicly called on the government to clarify why they were saying ‘amend’ rather than ‘repeal’. Behind the scenes, we used every social event and reception to buttonhole politicians and push our case, highlighting the goodwill that an announcement would generate for them on the international stage. It was an exhausting week, but with each passing day we knew our opportunities were diminishing.
Finally, on the last full day of the conference, the opposition Labor Party committed to full repeal of section 19A, within one year, if they won the election in November. The word came though via text message while I was sitting in a conference session on criminalisation advocacy, and I felt close to tears as I told the room what had happened. We now had commitments from both major parties, meaning reform of the law was almost assured.
Following the conference, we continued to push the government to explain how they intended to ‘amend’ section 19A and pressed our case for full repeal further. We never got an answer to our question, because the government didn’t bring the legislation forward before the expiry of the parliamentary term, then at the election there was a change of government.
The Labor Party, which had unambiguously promised to repeal s 19A, was now in government, and one of the most pleasing things about the last five months has been seeing them stick to their guns around 19A. Seeing government ministers on gay pride day carrying a banner saying ‘repeal section 19A’ was amazing.
I think the key message from our experience is that if you have an opportunity and you plan well, you can make tremendous use of it. I realise most activists won’t have the luxury of having the international AIDS conference come to their city, but hopefully other opportunities exist where local and global attention can be used to highlight inequities in the law. Building collaborations and learning from what has worked elsewhere is vital, but develop a strategy that suits your local needs and capacities.
Don’t be deterred if others disagree with your strategy – I’ve lost count of the number of times I’ve been told that criminalisation isn’t a first-order issue, or that by advocating for change we risk ‘making things worse’, or that by advocating too hard we risk getting nothing in return and pushing the issue off the agenda.
Now that s 19A is gone, our work continues. We still need to address the unacceptably high number of prosecutions for ‘HIV endangerment’ that occur in Victoria. We strongly believe we have a model that will deliver the right public health outcomes while safeguarding the public, without the use of expensive, ineffective and highly stigmatising criminal prosecutions. With the repeal of section 19A, our state government has recommitted itself to a health-based response to HIV, and we believe that gives us the best possible platform to continue our campaign for prosecutorial guidelines.
Paul Kidd (@paulkidd) chairs the Victorian HIV Legal Working Group.
By Anneke Meerkotter, Southern Africa Litigation Centre (SALC) and Ian Southey-Swartz, Open Society Initiative for Southern Africa (OSISA)
In 2009, a group of women, presumed to be sex workers, was as part of a police sweeping exercise in Mwanza, Malawi. The women were taken to the Mwanza District Hospital where they were tested for HIV without their knowledge or consent, and in contravention of Malawi’s HIV policy. The women were then taken to the Mwanza Magistrates’ Court where some were charged with and convicted of “spreading venereal disease (HIV)”.
In 2011, eleven of these women filed an application in the Blantyre High Court challenging their subjection to mandatory HIV tests and the public disclosure of their HIV status in open court. The women argued that these actions by government officials violated their constitutional rights. Justice Dorothy nyaKaunda Kamanga handed down judgment on 20 May 2015.
Reading her judgment in court, Justice nyaKaunda Kamanga, said that forced HIV testing amounted to a violation of the applicants’ constitutional rights, including their right to privacy; their right to non-discrimination; their right to freedom from cruel, inhuman and degrading treatment; and their right to dignity. Justice Kamanga went a step further and requested a copy of the criminal court records in order to review the sentence the magistrate imposed on the applicants.
The case is illustrative of how the criminal justice system often impedes on accused persons’ rights to dignity, a fair trial and access to justice. In the present case, the matter was repeatedly delayed, including due to high caseloads and industrial action by judiciary personnel.
The judgment comes in the context of other important developments in Malawi. Civil society activists have increasingly voiced their concerns about the manner in which sex workers are treated by the police. Police often arbitrarily arrest women presumed to be sex workers during sweeping exercises and misguidedly and unlawfully charge them with offences such as being a rogue and vagabond or living off the earnings of prostitution, when there is no evidence of such offences having been committed. Such arrests inevitably involve a range of human rights violations.
The attitudes displayed by police towards alleged sex workers also extend to how some policy-makers view sex workers in Malawi. The HIV and AIDS (Prevention and Management) Bill of 2013, currently prohibits compulsory HIV testing, but allows forced HIV testing for specific groups of people, including commercial sex workers. In contrast, this case highlights the human rights violations caused by mandatory HIV testing and the importance of having legislation which prohibits this. This is an important message at a time when the Malawi government engages in final deliberations on the proposed Bill.
The case shows that it is possible for vulnerable groups to hold the government accountable when their rights have been violated. It is hoped that the judgment, once available, will be used as a resource by other marginalized groups to assert their rights and will contribute to improving constitutional jurisprudence in the region.
Testing HIV positive is no longer a death sentence—a fact that stands as one of the great medical achievements of the twentieth century. The United Nations aims to diagnose 90 percent of all HIV infections worldwide by 2020, deliver antiretroviral therapy to 90 percent of those who test positive, and suppress the virus in 90 percent of those treated. If these goals are met, the AIDS epidemic could be over by 2030.
The UN strategy owes a significant debt to Canadian research—particularly that of Julio Montaner, who was among the first scientists to establish highly active antiretroviral therapy as the standard of care for HIV, back in the mid-1990s. Sustained use of HAART suppresses the virus’s ability to replicate, eventually decreasing the concentration of HIV cells in the blood to undetectable levels and delaying the onset of symptoms and eventual progression to AIDS.
Regrettably, our legal system has not kept pace with these advances.
Montaner conducts his research in Vancouver, which was among the hardest-hit communities in North America in the early ’90s. The British Columbia government soon became an enthusiastic supporter of HAART and quickly rolled out antiretroviral-therapy coverage across the province. Between 1996 and 2009, the number of people taking HAART increased more than sixfold. Accordingly, the rate of AIDS-related deaths in the province plummeted 80 percent.
In their efforts to treat the virus, the researchers had stumbled upon a way to control its spread, too: when antiretroviral treatment reduces the virus in a patient’s bloodstream, it also reduces the virus to undetectable levels in sexual fluids and dramatically decreases the risk of transmission. Studies indicate that, among gay men, an undetectable viral load decreases the risk for unprotected receptive anal sex from 1.4 percent to almost zero. When it comes to the spread of HIV, a low viral load (between zero and 0.05 viral copies per millilitre) is more effective at preventing transmission than wearing a condom is.
Once the epicentre for new cases, BC has been enormously successful at controlling the HIV epidemic, using this Treatment as Prevention strategy, or TasP. The rate of new infections is now below the Canadian average. For the past decade, Montaner has been calling for national and international prevention strategies modelled on BC’s success with TasP. But what seems like sound medical advice could inadvertently put Canadian patients at legal risk. This is because we have one of the most aggressive legal approaches to HIV non-disclosure in the world. We are second only to the US in prosecutions.
HIV-positive Canadians who don’t reveal their status before they have intercourse can be charged with aggravated sexual assault. Conviction carries with it a maximum sentence of life in prison and a mandatory listing on the national registry of sex offenders. Between 1989 and early 2015, 176 people, in 188 separate cases, were prosecuted for non-disclosure, and more than half of the cases led to conviction.
Yet many of those convicted did not transmit the virus to the plaintiff. To be found guilty, a defendant need only have knowingly exposed his or her partner to what the courts deem a “realistic possibility” of transmission. Since there are no prosecutorial guidelines that define a low viral load, interpretations vary widely from case to case. And so it is possible that a properly medicated HIV-positive sexual partner might be convicted under the law, even if his viral load is so low as to reduce the possibility of transmission to a statistically negligible level.
The non-disclosure law originated with the 1998 Supreme Court decision in R v. Cuerrier, at a time when death rates were skyrocketing and policy-makers were scaling up testing and treatment. Proponents of the law argue that it helps protect people from malicious exposure to HIV.
The feeling on the ground is very different: since the law punishes only those who knowingly put partners at risk, it might encourage some at-risk Canadians to remain ignorant about their medical status. Evidence is sparse when it comes to this chilling effect, but even researchers such as Montaner agree that the law “creates a counterproductive environment.”
There is also a growing number of allegations that health authorities have not been forthcoming when it comes to informing patients of the legal risks associated with being HIV positive. Though BC’s 2014 testing guidelines lay out explicitly the requirement for informed consent, they don’t advise practitioners to address the issue of non-disclosure criminalization before testing. The province’s public-health officer, Perry Kendall, says this is intentional. Public-health practitioners are not legal experts, he says, noting that the longer and more complex the preliminary conversation, the less likely the patient will be to go through with testing.
While there is little systematic collection of information about testing experiences, Micheal Vonn of the BC Civil Liberties Association says she has received a number of complaints from patients, particularly pregnant women, who claim they were tested without consent. Vonn, alarmed by these allegations, plans to investigate further.
Another human-rights advocate, Richard Elliott of the Canadian HIV/AIDS Legal Network, believes clearer guidelines are essential to ensuring that those who are tested are sufficiently aware of the legal risks. He notes that physicians’ records have been subpoenaed in court to support convictions for non-disclosure.
The unfortunate irony here is that the very laws intended to prevent further transmission of HIV may actually promote its spread—by discouraging testing and, by extension, impeding the work of the successful TasP program. Seventeen years after the Supreme Court’s 1998 decision, Canadian lawmakers must ensure that our policy of criminalizing non-disclosure does not serve to punish those who opt for life-saving HIV therapy and treatment.
On 18 March 2015, in Aids Law Project v Attorney General and Others [2015] the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act (“Act”) unconstitutional. I applaud the impetus of the decision but I want to argue that the narrow focus of the Court’s judgment reduces its potential to advance rational health policies and laws.
Section 24(1) of the Act requires a person aware of being HIV-positive to “take all reasonable measures and precautions to prevent the transmission of HIV to others” and to “inform, in advance, any sexual contact or persons with whom needles are shared” of their HIV-positive status. Subsection (2) prohibits “knowingly and recklessly, placing another person at risk of becoming infected with HIV”. Contravention of these provisions is a criminal offence punishable by imprisonment for up to seven years, and/or a fine. Under section 24(7), a medical practitioner who becomes aware of a patient’s HIV-status may inform anyone who has sexual contact with that patient of their HIV-status.
In 2010, the AIDS Law Project sought a declaration that section 24 of the Act was unconstitutional and “unacceptable discrimination” on the basis of health status. It argued that the undefined terms of “inform”, “in advance” and “sexual contact” renders section 24 vague and overbroad, contrary to the principle of legality. It submitted that the provision violates the right to a fair hearing, equality, non-discrimination, and sexual privacy. The petitioner was supported by an amicus curiae, the Centre for Reproductive Rights, which made submissions on the disproportionate impact that the provision would have on women, exacerbating stigma and undermining public health interventions.
In a unanimous judgment of a sitting of three judges of the High Court, Lenaola HJ held that the central issue was the provision’s vagueness and overbreadth. Focussing solely on the absence of a definition for “sexual contact”, the Court held that it is impossible to determine what acts are prohibited. Further, given that section 24 places no obligation on sexual contacts who have been informed of another’s HIV-status to keep that information confidential, the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.
Similar criminal provisions exist in a number of countries. The Constitutional Court in Zimbabwe is, for example, currently considering the constitutionality of Zimbabwe’s HIV criminalization law. The Kenyan judgment must be applauded to the extent that it emboldens the human rights critique of these laws and compels the Kenyan government to reconsider the provision.
It is disappointing, however, that the privacy violations were constructed so narrowly, with the Court failing to appreciate the risks of criminalizing non-disclosure more broadly, particularly for vulnerable groups, as raised by the amicus. Furthermore, by framing the vagueness and overbreadth ruling so strictly, the inhibiting effects of criminalization on effective public health interventions remain legally unscathed.
Insofar as the courts may be a useful forum to advance health rights and public health, perhaps a better legal foundation would be a rationality review of legislation. In a number of common law jurisdictions, this entails testing conduct or law against the ends that it claims to achieve. The standard typically requires that conduct needs to be rationally connected to a legitimate government interest or purpose in order to be lawful.
As made clear by the Act’s long title, its purpose is to prevent, control and manage HIV and AIDS, promote public health, and deliver appropriate care for persons living with HIV. The criminalization of HIV transmission and non-disclosure has come under heavy criticism by leading international experts and bodies for failing to protect human rights in a way that promotes public health initiatives for the effective treatment and control of HIV. If the argument against criminalization of HIV transmission is found persuasive in court, the legislation should be found irrational because it employs a strategy that is harmful to its purported ends.
It is in this sense that we might consider rationality review when using the courts in similar jurisdictions as fora to insist on public health policies and laws that are founded in scientific evidence and not fear and stigma.
The Czech Health Ministry is pushing a proposed amendment to the law on public health which would make HIV testing compulsory for some people in high risk groups. While the ministry argues that this is to curb the spread of the disease and ensure early treatment, human rights advocates say it would mean a serious breach of human rights.
HIV testing in the Czech Republic is conducted anonymously and is free of charge. In its prevention programmes the Czech AIDS Help Society highlights the importance of getting tested in order to enable early treatment of the disease and protect others in the event of a positive outcome. Still many people who engage in what is seen as high-risk behaviour do not want to undergo testing. The Czech Health Ministry now wants to change that and force people who are considered to be at high risk to undergo testing or face a tall fine.
The proposed amendment to the law has already passed without opposition through the health committee of the Chamber of Deputies and is due to go into a third reading in the lower house. However it has stirred controversy among human rights advocates, and is strongly opposed both by the Czech AIDS Help Society and the government’s committee for the rights of sexual minorities.
Robert Hejzák, photo: Czech Television Robert Hejzák from the Czech AIDS Help Society says repression is not the way to go –even in the interest of protecting public health.
“Human rights are universal and we do not accept the argument that in the case of HIV they should be violated in the interest of public health. Moreover HIV positive people are not a direct threat to the public – this is not ebola, it is not tuberculosis or even the flu.”
The country’s chief hygiene officer Vladimír Valenta refuses to hear this argument saying that the health authorities have a duty to protect the public from an epidemic.
“We are talking about individuals who are at the centre of a high-risk environment and there is a higher probability of infection. From an epidemiological point of view HIV is no different from other diseases that put the population at risk. There is a danger off the virus spreading and this danger merits the same kind of protective measures as in other potential epidemics.”
Vladimír Valenta, photo: Filip Jandourek At present the Czech Republic (with over 10 million inhabitants) has over 2,000 people registered HIV positive, and over 200 people have died of AIDS. Each year brings on average around 230 new cases. Under the present legislation testing is only compulsory for pregnant women in order to enable heightened protection of the unborn child. If the newly-proposed amendment passes through both chambers of Parliament and is signed into law by the president pretty much anyone considered high risk could be forced to undergo a test for HIV. How this would prevent them from spreading the disease further or even encourage them to act responsibly with regard to their own health is not clear and the answer to those questions may be decisive in whether lawmakers allow this particular amendment to pass through a third and final reading in the lower house.
By Kamau Muthoni Kenya: The High Court has declared unconstitutional a section of the HIV and Aids Prevention and Control Act that sought to criminalise reckless spreading of the disease. A three-judge bench comprising justices Mumbi Ngugi, Isaac Lenaola and George Odunga ruled Section 24, introduced by the State and criminalising the reckless spreading of HIV, was unclear and had no limits on which group of people was targeted.
An Oshawa judge’s decision to sentence a man to house arrest for Internet child luring rather than jail because police publicly revealed his HIV status is the latest example of judges finding creative ways to manoeuvre around mandatory minimum sentences.
Former youth pastor Kris Gowdy was given two years less one day house arrest and three years’ probation last week by Ontario Court Justice Michael Block rather than the mandatory minimum sentence of one year in jail. Justice Block found Durham Regional Police violated Mr. Gowdy’s constitutional rights when they indicated in a news release shortly after his arrest in August 2012 that he was HIV-positive.
The story of the “HIV-positive ex-youth pastor” made headlines around the world, causing significant emotional trauma to Mr. Gowdy, Justice Block wrote in his decision.
“Mr. Gowdy had a right to make his own choices concerning the disclosure of his HIV status,” he wrote. “No doubt he would have chosen his own method and different timing if he ever determined to inform those near to him. Absent evidence of serious risk of transmission and rigorous compliance with statute, no one had the authority to make that decision for him.”
Editor’s note: This story is part of a Special Report produced by The GroundTruth Project called “Laws of Men: Legal systems that fail women.” It is produced with support from the Ford Foundation. Reported by Tracy Jarrett and Emily Judem.
An HIV diagnosis is no longer a death sentence, thanks to advances in medicine and treatment in the last 30 years. But stigma against HIV/AIDS and fear of discrimination still run strong in South Africa, despite legal protections, as well as drastically improved treatment, prevention techniques and education. Today an estimated 19 percent of South African adults ages 15-49 are living with HIV.
And women, who represent about 60 percent of people living with HIV in South Africa, face a disproportionately large array of consequences, including physical violence and abuse.
“Upon disclosure of women’s HIV positive status,” reads a 2012 study by the AIDS Legal Network on gender violence and HIV, “women’s lives change, due to fear and the continuum of violence and abuse perpetrated against them.”
Although forced or involuntary disclosure of one’s HIV status — along with any discrimination that may result from that disclosure — was made illegal by South Africa’s post-apartheid constitution, experts and advocates say that public knowledge of these laws is limited and the legal system is not equipped to implement them.
Not only are women disproportionately affected by HIV, but they are also more likely to know their status. More women get tested, said Rukia Cornelius, community education and mobilization manager at the NGO Sonke Gender Justice, based in Johannesburg and Cape Town, because unlike men, women need antenatal care.
And often, she said, clinics give women HIV tests when they come in for prenatal visits.
The way hospitals and clinics are set up also are not always conducive to protecting privacy, said Alexandra Muller, researcher at the School of Public Health and Family Medicine at the University of Cape Town.
“People who provide services in the public system, at the community level, are community members,” said Muller. “This is an important dynamic when we think about stigma and disclosure.”
Doctors and nurses can see 60 to 80 patients per day in an overcrowded facility with shared consultation rooms, Muller said.
“There’s not a lot of consideration for how is a clinic set up,” added Cornelius, so that “a health care worker who has done your test and knows your status doesn’t shout across the room to the other health care worker, ‘okay, this one’s HIV-positive, that file goes over there.’”
Once HIV-positive women disclose their status, willingly or not,they are disproportionately affected by stigma because of the direct link between HIV and gender violence.
This is the second of two short videos from the Canadian HIV/AIDS Legal Network explaining what the law currently is relating to HIV non-disclosure (covered in Part 1) and what is wrong with this approach. Watch Part 1 here: http://bit.ly/1oMs1DM
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