Canada: New documentary, ‘Positive Women: Exposing Injustice’ has world premiere in Toronto

Last night saw the world premiere of a compelling, heart-wrenchingly moving 45 minute documentary film executive produced by the Canadian HIV/AIDS Legal Network that tells the intimately personal stories of four women living with HIV in Canada. It argues that the current legal situation which criminalises sexual behaviour between consenting adults and discriminates against those living with HIV is irrational, ineffective and unjust.

Positive Women: Exposing Injustice features four courageous positive women bravely speaking from the heart on this important issue:

  • Diane, from Quebec (the defendant in the Supreme Court case R v DC) who was charged for not telling her partner that she had HIV at the beginning of an ultimately abusive relationship;
  • Jessica, a young woman who chose not to pursue charges against the man who infected her, and who has some of the best lines in the film (she calls disclosing her HIV-positive status, “dropping the H-bomb”!);
  • Lynn, an Aboriginal woman who has personally faced extreme stigma and violence due to her HIV-positive status; and
  • Claudia, a Latina woman who describes the challenges of disclosure and intimate relationships for women living with HIV. 

Legal experts, doctors, counsellors and support workers also appear in the film to complement the women’s stories and to challenge current Canadian legal practice that is oppressing the very women they are meant to protect. Anyone who believes that HIV criminalisation protects women needs to see this film.

It will next be screened in Washington DC at the International AIDS Conference on Thursday July 26th in the Global Village Screening Room from 18:00-19:00.  The screening will be followed by a question and answer session.

For more information about the documentary, which was produced and directed by Alison Duke, visit http://www.positivewomenthemovie.org/index.html

HIV non-disclosure and Canadian criminal law (Positive Lite, 2012)

Positive Lite editor Bob Leahy talks to Edwin J Bernard, co-ordinator of the HIV Justice Network, about HIV non-disclosure and the criminal law, particularly as it relates to the Canadian context where non-disclosure of known HIV-positive status prior to sex that may lead to a ‘significant risk’ of HIV transmission is considered aggravated sexual assault. The interview took place in Toronto, in May 2012, prior to the Supreme Court of Canada’s decision on the issue.

Greece: Matthew Weait on the moral panic over the mass arrest of female sex workers with HIV

Matthew Weait, Professor of Law and Policy at Birkbeck College, University of London guest blogs on Wednesday’s arrest of 17 HIV-positive women who allegedly worked illegally as sex workers.  Greek authorities are accusing them of intentionally causing serious bodily harm. 

The arrest in Athens of 17 female sex workers living with HIV this week is outrageous on many levels. It is not that a significant number of them have had their right to respect for private life violated (12 had their photographs published on a police website), nor that there is uncertainty as to whether the women concerned knew their HIV status, nor that the women were arrested after a screening process by the Greek Centre for Disease Control (how voluntary was that, I wonder?), nor that they have been charged with intentionally causing grievous bodily harm (a charge almost impossible to prove, and on the facts arising simply from having unprotected sex with clients – according to news reports it is unclear whether any clients have actually been infected as a result of sex with the women concerned). All these things are bad enough, but what is really appalling is the way in which it is the women who have been identified as the legitimate locus of control and the subject of punitive state response.

It is appalling, but it is entirely to be expected. There is a long and ignoble tradition of locating the source of STIs in women in general, and female sex workers in particular. In the context of HIV criminalization this tradition has reached a new peak (or, perhaps better, a new trough). Put simply, HIV criminalization has compounded, and added a new and frightening dimension to, the longstanding idea that female sex workers are a source of pollution threatening the cleanliness of men. It is not just that by identifying them as the risk and the cause of any harm men may suffer, the men concerned (and men in general) are able to divert attention from their own responsibility (though this is important), it is that criminalization has provided an opportunity, in this context, to reinforce the idea that women are inherently dirty, that HIV is dirty, and that cleansing (what a frightening word that is) through punishment, containment and deportation (the women in Athens were foreign nationals) is a reasonable and justifiable response.

Of this logic we should be very afraid. The elimination of dirt at a political level has found expression, at its most extreme, in the slaughter of the Jews by the Nazis, in the apartheid regime of South Africa, in eugenic science and rules relating to miscegenation. It is evident in any attempt by a society to maintain its ‘purity’ by imposing border controls that require would-be immigrants to undergo tests that filter out the sick and unhealthy.

At an individual level, the elimination or exclusion of dirt – or rather the practices, attitudes and response mechanisms that attempt to achieve this (prosecution, imprisonment, deportation) mirror a wider political project in which the HIV positive body is punished, marginalised and devalued because it represents everything that is feared in post-modernity. The HIV positive body is a paradigm site for repressive legal and political response because of its capacity to reproduce itself in the body of those for whom it represents a threat to physical and ontological security, and because that reproduction occurs – and can only occur – through the merging of bodies via the co-mingling of their ‘inside’. Elizabeth Grosz, an Australian feminist theorist has put this better than anyone else when she explains that:

Body fluids attest to the permeability of the body, its necessary dependence on an outside, its liability to collapse into this outside (this is what death implies), to the perilous divisions between the body’s inside and its outside. They affront a subject’s aspiration toward autonomy and self-identity. They attest to a certain irreducible ‘dirt’ or ‘disgust’, a horror of the unknown or the unspecifiable that permeates, lingers, and at times leaks out of the body, a testimony to the fraudulence or impossibility of the ‘clean’ and ‘proper’. (Grosz, 1994: 193-4)

For Grosz, it is women’s bodies, their unstable and destabilizing corporeality, that serve both to affirm men’s belief in their own inviolability and, thus, the bounded body (i.e. male bodies) as the normal, universal and legitimate form of subjectivity. The seminal flows that emit from male bodies, reduced to a by-product of sexual pleasure rather than conceived as a manifestation of immanent materiality, and as something that is directed, linear and non-reciprocal, enables men to sustain the fantasy of the closed body and of the possibility of control over it. The socio-cultural and psychological dimension of Mackinnon’s (in)famous assertion about the power necessarily instantiated in heterosexual relations (‘Man fucks woman: subject verb object’ (Mackinnon, 1982: 541), this fantasy is a prerequisite for the maintenance of masculinity, and of the mastery – over women, over nature – that masculinity enables, or which is its prerogative.

To receive flow, or to be in position where there is a risk of flow in the other direction, is to be identified with the feminine (whether as woman, or as passive homosexual) and to lose the phallic advantage; to acknowledge the essential materiality of the body, that its flows are not merely by-products of the body but constitutive of it, is an admission that strikes at the heart of masculinity, at the security which is its privilege, and at the legitimacy of the hierarchised and gendered socio-economic order upon which its privileged status depends. Understood in these terms, it is unsurprising that it is women’s bodies (despite the relatively low risk of female to male sexual transmission) that are – within the discourse that frames the heterosexual HIV epidemic– characterised as the source of infection. As Grosz explains, this discourse is one that makes

… women, in line with the conventions and practices associated with contraceptive procedures, the guardians of the sexual fluids of both men and women. Men seem to refuse to believe that their body fluids are the ‘contaminants’. It must be women who are the contaminants. Yet, paradoxically, the distinction between a ‘clean’ woman and an ‘unclean’ one does not come from any presumption about the inherent polluting properties of the self-enclosure of female sexuality, as one might presume, but is a function of the quantity, and to a lesser extent the quality, of the men she has already been with. So she is in fact regarded as a kind of sponge or conduit of other men’s ‘dirt’. (Grosz, 1994: 197)

Given Grosz’s analysis it is hardly unsurprising that the Centre for Disease Control in Greece had 1500 calls from concerned men once the story about the brothels broke. Far from accepting any responsibility they might have for having sex which carried the risk of STI and HIV infection, it was entirely to be expected that their concern was whether the women might have infected them, and that the legal response was to round up the women. Patriarchy is, after all, a Greek word.

The response of the Greek health Minister, Andreas Leverdos, prompted in part by a massive rise in HIV infections in Greece in recent months (954 new infections were reported in 2011, a 57 percent increase from the previous year), and also – surely – by the political value in deporting non-nationals at a time when Greece is in economic meltdown, was to suggest criminalizing unprotected sex in brothels. He is reported as saying,

 Let’s make this a crime. It’s not all the fault of the illegally procured woman, it’s 50 percent her fault and 50 percent that of the client, perhaps more because he is paying the money.

On the face of it this response suggests some recognition of shared responsibility. However, it is a pipe-dream – I suggest – to imagine that doing this (even if it were politically viable, which I doubt) would have the effect of eradicating the deeply entrenched view that female sex workers are to blame for their clients ills; nor is criminalization of sexual behaviour that carries the risk of HIV infection a productive or constructive answer to anything. It would simply perpetuate the idea that punitive laws are an appropriate response to what is properly understood as a public health issue that should be addressed through wider awareness, education and an affirmation of the importance of taking care of, and respecting, ourselves and others.

(Reposted from Matthew Weait’s own blog, ‘The Times That Belong To Us’ with kind permission. You can also follow Matthew on Twitter @ProfWetpaint)

Norway: Prof. Matthew Weait delivers stirring clarion call to recognise harm of HIV criminalisation

Yesterday Professor Matthew Weait, Professor of Law and Policy at Birkbeck College, University of London delivered a stirring lecture to the public health professionals involved in implementing Norway’s HIV strategy.  As Norway is currently reconsidering its criminal code as it relates to HIV and other infectious diseases, ‘Criminalisation and Effective HIV Response’ was a clear clarion call to “recognise that HIV is not a legal problem capable of a legal solution, but a public health issue to be dealt with as such.”

What I would urge you to recognise is that the appeals for change are being made not only by people living with HIV and the civil society organisations advocating on their behalf, but increasingly by health professionals, virologists, epidemiologists and others who have come to recognise that punitive responses to HIV are counter-productive and damaging in efforts to respond effectively to the spread of the virus. This is a critically important point, and their voice needs to be heard.

With Matthew’s permission, I am publishing the entire lecture below.  You can also download the full text (with full detailed footnotes and references) from Matthew’s blog.

Professor Matthew Weait in Oslo
Courtesy of Charlotte Nördstrom

As a country which many in the world look to for progressive policy-making grounded in evidence and human rights principles, Norway’s response to HIV is not simply a matter of national importance, but is of significance both to the developing countries to which it provides economic and other assistance in the fight against endemic HIV, and to high-income countries whose epidemics are similarly limited and concentrated in particular population groups.

Your current national strategy – Acceptance and Coping – states as follows:

The comprehensive aim of this strategy is that at the end of the strategy period, Norway will be a society that accepts and copes with HIV in a way that both limits new infection and gives persons living with HIV good conditions for social inclusion in all phases of their lives.

The strategy document sets out a number of specific goals, each of which discusses measures that will be taken in order to deliver on the strategy. My focus today is on the way criminalisation of HIV transmission and exposure might impact on that strategy. I will start, though, with some background and context.

1. International Thinking and National Law

At the 26th special session of the UN General Assembly in 2001, States party to the International Covenant on Economic, Social and Cultural rights (including Norway) declared their commitment to

… enact, strengthen or enforce, as appropriate, legislation, regulations and other measures to eliminate all forms of discrimination against and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS and members of vulnerable groups …

This commitment is yet to be realised. Since the beginning of the epidemic new and existing legislative measures have been introduced and enforced that impede rather than further the central goal of reducing onward transmission of HIV, of minimising the spread of the epidemic, and protecting the rights of PLHIV and those most at risk of infection.

In a 2010 Report, the UN Special Rapporteur on the Right to Health referred to this commitment in the context of the criminalisation of HIV transmission and exposure. Drawing on the best available evidence he emphasised that criminalisation has not been shown to limit the spread of HIV, that it undermines public health efforts and has a disproportionate impact on vulnerable communities.

Drawing on the UNAIDS International Guidelines on HIV/AIDS and Human Rights and more recent UNAIDS/UNDP policy, he reiterated that the criminal law should only be deployed in very limited circumstances. In particular, people should not be prosecuted where there is no significant risk of transmission, where they are unaware of their HIV positive status, do not understand how HIV is transmitted, have disclosed their status (or honestly believe their partner to know it), failed to disclose because of a fear of violence or other serious negative consequences, took reasonable precautions against transmission, or have agreed on a level of mutually acceptable risk.

Norway, in common with most other countries, falls significantly short of the UNAIDS guidance and of the Special Rapporteur’s recommendations. Its current criminal law imposes liability irrespective of a person’s viral load, those who transmit HIV non-intentionally, and on those who merely expose others to the risk of infection. Also, and more exceptionally, it allows for the criminalisation and punishment of those who engage in unprotected sex, even when they have disclosed their HIV positive status to their partner and where the partner has consented to the risk of transmission. Although its penal code allows for the criminalisation of other serious diseases, almost all cases that have been brought to the courts have concerned HIV – and so although it is not an HIV-specific law in theory, the practice is very different.

2. The Enforcement of Law

This use of the criminal law has placed Norway – along with its Scandinavian and Nordic neighbours, at the top of the leader board of HIV criminalisation in Europe, and very high globally. When we look at rate of convictions per 1000 PLHIV in the European region, we see a higher rate of conviction in northern European countries, especially those in Nordic and Scandinavian countries.

This variation in intensity of criminalization as measured by convictions seems strange at first glance, especially when you contrast it with the HIV prevalence estimates.

It is especially notable that the bottom three countries with respect to criminalisation (Italy, France, UK) have – conversely – the highest numbers of people living with HIV, and (in general) higher than average prevalence.

What, then, might be explanations for this? We have to be cautious, given the non-systematic nature of the data collection; but I do think that we can begin to understand the pattern if we think about some of the social, cultural and historical differences between countries in the region.

So, for example, we can see that the top five criminalising countries in the region all have laws which impose liability for the reckless or negligent exposure (and thus have a wider potential scope for criminalisation). We can also see that these same countries all have high confidence in their judicial systems (which may go some way towards accounting for a person’s willingness to prosecute after a diagnosis, believing that their complaint will be dealt with efficiently and fairly). Even more interestingly, I think, are the correlations that we see when we look at variations in interpersonal trust, as measured by the World Values Survey.

Here we can see the top five countries in the region with respect to interpersonal trust (and the only countries where the majority of respondents trusted other people), are all in the top half of criminalizing countries, with rates of conviction in excess of 1 / 1000 PLHIV.

These correlations between interpersonal trust and conviction rates in the region become even more interesting when we learn that, according to reliable empirical research, the Scandinavian and Nordic countries have a lower fear of crime, are less punitive in their attitudes to those who commit crime, and – in general – have lower rates of imprisonment for convicted offenders than other countries. If this is the case, why would HIV transmission and exposure criminalization be so high?

My answer to this is tentative, but it seems plausible to suggest that the sexual HIV cases that get as far as court and a conviction are ones which are paradigm examples of breach of trust. It is not inconsistent for a society to have a lower than average generalised fear of crime, or lower than average punitive attitudes, and at the same time to respond punitively to specific experiences of harm, especially when that arises from a belief that the person behaving harmfully could have behaved otherwise and chose not to. Indeed, it seems entirely plausible that where there are high expectations of trust, breaches of trust (for example, non-disclosure of HIV status) are treated as more significant than where value in trust is low. Combine this with countries (such as your own and Sweden) which are committed to using law to ensure public health, and which consequently are prepared to using it to respond to the risk of harm (HIV exposure), as well as harm itself (HIV transmission), and we can see why the pattern of criminalization appears to be as it is.

3. Impact of Criminalisation on PLHIV and Most at Risk Populations

What is the impact of criminalisation?

This is a difficult question to answer, because it depends on what we mean by impact. First, there is the impact on the individual people who have been, and continue to be, prosecuted – people who have been investigated, convicted, jailed and publicly shamed, sometimes simply for having put others at risk, sometimes for transmitting HIV unintentionally, sometimes when they have been completely open about their status with a partner in a relationship which subsequently breaks down. For these people, being HIV positive and failing to live up to the exacting standards the law in this country, and others in this region, demands of them has turned them into criminals with all the social and economic disadvantages that entails. Here we could think specifically of your own fellow country man Louis, who had a charge of transmission dropped when it transpired that he was not the source of his partner’s infection, but is still being prosecuted for exposure.

Second, and critically, there is the impact on public attitudes towards, and responsibility as regards HIV, PLHIV and sexual health generally. Here I am not talking just about the individual experience of the two Thai women in Bergen who stopped in a bar for a drink after shopping and, in front of other customers, were thrown out by the owner because of a recent case in the town involving a Thai sex worker (from that point on, being Thai themselves (though legally in the country and married to Norwegian men) made them guilty, positive and dangerous simply by association). I am talking more of the broader impact that such an example illustrates.

Criminalisation, because it places responsibility for transmission risk on people with diagnosed HIV, serves to reinforce the idea that responsibility for one’s own sexual health belongs with those people. The existence of criminal law provides people who have consciously taken risks with an official mechanism for declaring their victim status. It provides grown, adult, men who have unprotected sex with migrant sex workers an opportunity to deny any responsibility they might have for actually taking responsibility themselves. It provides people (in Norway) who in fact consent to sex with a person who has disclosed his or her positive status the opportunity to take revenge if the relationship breaks down. If we can blame someone else for misfortune, or for being in situations where there is a risk of harm, it is only natural that some of us will; and the sensationalist media coverage (as bad here as it is anywhere in the world) merely serves to confirm this and to sustain the ignorance which the FAFO study highlighted. The headlines are, as you well know, always in the form “HIV-man (or woman) exposes x number of women (or men) to HIV.” They are never in the form “X number of people put themselves at risk by having unprotected sex”.

Finally, I would just like to mention Maria (not her real name) who I interviewed here in Oslo in March 2012. For her, a mother of two children who was contacted by the police about the arrest of a man she had had a sexual relationship with (but who was not in fact the source of her HIV infection) the trial in which she was made to be a complainant has resulted in her being so afraid of legal repercussions that she has not had sex for eighteen months. For Maria, and people like her, a guilty verdict does not necessarily result in closure, and it does not result in a reversal of sero-status. It simply creates another potential criminal who better beware. If, as Acceptance and Coping states, Norway is serious about reducing the number of new infections, enabling people to feel secure in testing and in discussing their positive status more openly, it must recognise that criminalisation of the kind that exists in this country does nothing to assist in those endeavours.

4. Barriers to Change

What, then, are the barriers to change? I ask this question recognising that the Commission led by Professor Aslak Syse has yet to report on its findings and make recommendations, and here I will mention only two.

The first thing I would say here is that here are many in the Scandinavian and Nordic region who are calling for a change in the law. However, there has been, and continues to be, among politicians and policy makers – as well as among some public health professionals – a scepticism about calls to decriminalise non-deliberate HIV transmission and exposure.

Take politicians first. Their scepticism stems, I think, from a belief that arguments in favour of decriminalisation when made by advocacy organisations are – in effect – arguments for being allowed to practise unsafe sex with impunity: without consequence. If a gay man living with HIV argues that he should not be punished if he has unprotected sex, or does not disclose his status to a partner, or happens to transmit HIV during consensual sex (even when this is the last thing he wishes to do) it is very easy to hear that as someone claiming a right to be irresponsible. Put simply, the fact that at a national level in this region the decriminalisation advocacy work has been pursued largely – though not entirely – by civil society organisations has resulted in a less than sympathetic response from those in a position to deliver change – especially those elected politicians whose principal concern is their immediate electorate and public opinion more generally. Nor, for a long time, has the medical profession been entirely supportive. For doctors, especially those in official public health positions at national and regional level, it has been problematic to support those who seem to wish to challenge their role in protecting the health of society generally. For health professionals, arguments for repealing the coercive powers given to them under communicable disease legislation, or of the criminal law that provides the final sanction against those who do not comply with regulations, are easily read as arguments for allowing people with HIV the right to undermine the very thing it is their responsibility to achieve: as a right to put healthy people at risk of disease and illness.

Faced with the way in which their arguments have been interpreted by those with political power, it is small wonder that those appealing for change have met with limited success, despite arguments consistent with those of expert international organisations (such as UNAIDS). What I would urge you to recognise is that the appeals for change are being made not only by people living with HIV and the civil society organisations advocating on their behalf, but increasingly by health professionals, virologists, epidemiologists and others who have come to recognise that punitive responses to HIV are counter-productive and damaging in efforts to respond effectively to the spread of the virus. This is a critically important point, and their voice needs to be heard.

The second factor that sustains the legitimacy of punitive laws in a country, and makes their reform difficult, is the nature of the epidemic in that country. Like other Nordic countries, Norway’s HIV epidemic is localised both socially and geographically. It is predominantly an urban disease affecting MSM and migrants from high-prevalence regions in Africa and Asia. Recognition of this has led to targeted prevention strategies, which is of course welcome; but it has also contributed to the ignorance about HIV among the general population (as shown by the FAFO study), and – critically, I think – to a perception that HIV is, and remains, someone else’s problem. Epidemiologically this may be correct. HIV does not, in general, impact directly on the lives of the vast majority of Norwegians. Few will know someone living with HIV, and even fewer someone who is open about his or her positive status. A consequence of this is that measures which would be seen as gross infringements of civil liberties and personal freedom if applied to the general population are seen as a reasonable and legitimate response. It is as if HIV were a snake that has found its way into a party full of animal rights activists. They cannot simply kill it (that would be wrong, and there are some limits to how one may reasonably respond to phobias) but it is justifiable to take any containment measures necessary to stop it getting any closer.

If you doubt this, consider the following two questions. First, we know that a significant number of new transmissions of HIV are from those who are newly infected and undiagnosed. If the criminal law on exposure and transmission were logical, should it not be applied to all those who have unprotected sex with a partner, who have had unprotected sex in the past, and who do not have a recent negative test result? And if we think non-disclosure is a justification for criminal liability, should we not criminalise all those who fail to disclose the fact that they have had unprotected sex in the past and are uncertain of their HIV status? Being HIV positive is not the relevant risk: infectiousness is.

Why don’t we do that when it is the logical approach? Because such rules would apply to the vast majority of adults in Norway, not merely to a containable and definable sub-section of those adults. And even those who might respond to this proposition by pointing out that undiagnosed HIV is far more common among MSM and migrants would have a hard time justifying criminalising all unprotected homosexual (but not heterosexual) sexual activity, and the unprotected sexual activity of migrant people from high-prevalence regions with native Norwegians. This would be seen, I suspect, as a grossly discriminatory and offensive approach – despite the fact that it makes far more sense than the one that you have here.

As to the second question, consider this. Norway, in common with its neighbours, has a strong tradition of overseas aid, and an official, publicised commitment to providing assistance to developing countries in their fight against HIV and AIDS. Indeed, the Government of Norway has publicly stated that it “ … wishes to focus on how legislation and public services can do more to reduce vulnerability and increase dignity and better cooperation into the fight against AIDS”.

The question therefore is: should Norway encourage the high-prevalence countries to which it provides support to adopt its legal model their HIV response? Put simply, do you think it would be appropriate to criminalise HIV transmission, exposure and non-disclosure where it is endemic? My guess is that your answer to that would be no. But if the answer is no, you must ask yourselves – as matter of fundamental ethics – why not? Why is it appropriate to respond punitively to PLHIV living in Norway when to do so in Botswana, or Malawi, or Swaziland would be wrong?

It seems to me that the answer to this question, even if it is a difficult and uncomfortable one to acknowledge, is that for as long as HIV only affects a small and definable minority punishment is defensible. As long it is “over there”, among the gays and the migrants and the IDUs, and for as long as coercive powers will not impact on the vast majority of the population, criminalisation is something that can be legitimated and politically defended without fear of popular protest. If this is correct, it is particularly offensive and pernicious. Exposure is exposure wherever it takes place in the world; transmission is transmission; HIV is HIV; disclosure is either to be required as a matter of principle, or not. If criminalisation is not something that one country would countenance for human beings in countries in which HIV continues to be a real and immanent threat, and – critically – human beings for whom HIV infection is far less easy to manage, and still results in significant mortality, then on what possible principled basis is it justifiable to use the criminal law against those in one’s own country, where HIV is a manageable condition and where the quality of life for diagnosed PLHIV is as high as it possibly could be? If there is any substance to the claim that the legal response to PLHIV in Norway is discriminatory – which many of its critics suggest – that substance finds its expression here.

5. Final Observations

Norway is placed better than any other nation at the present moment to reform its law so that it complies with UNAIDS recommendations. The work of the Law Commission, which will report in the autumn of 2012, has been more focused and comprehensive than any other initiative I know of. Its report will, I have no doubt, present arguments both for and against the present law, and those arguments will be supported by the best available evidence. Ultimately, though, legal reform is in the hands of politicians, and their concerns extend beyond the logic of prevention. What those politicians need is the support of those who work in the field, at the sharp end of HIV prevention, diagnosis and treatment. Without that, it will be all too easy to adopt minimal reforms that do not go to the heart of the matter, or to kick the report into the long grass and carry on as before. It is not for me to tell you what your law should be. All I can do is urge you to read the Oslo Declaration, published here just recently, and to watch the video accompanying that. All I can do is encourage you to recognise that the authors of the HIV Manifesto, a radical initiative demanding the repeal of paragraph 155 of the Penal Code, was not written by people who simply want to have sex without consequences but by intelligent, rational and thoughtful people. All I can ask you to do is to recognise that HIV is not a legal problem capable of a legal solution, but a public health issue to be dealt with as such. All I can suggest is that in thinking about this complex topic you ask yourself the following simple questions.

Does criminalising non-deliberate HIV transmission and exposure assist you in your prevention work?

Does it contribute to increasing accurate and helpful knowledge and understanding about HIV and to the de-stigmatisation of people living with the virus?

And does criminalisation make achieving the aims set out in Acceptance and Coping easier to achieve?

If the answer to any or all of these questions is no, then the arguments for HIV criminalisation of the kind and intensity that currently exist in this country are not, I would suggest, as strong as those against.

Austria: Man accused of criminal HIV transmission fights “unconstitutional” forced blood test

A man in Austria is taking a case to the Constitutional Court that challenges the forcible testing of blood for HIV (as well as for use in phylogenetic analysis) that was legalised on 1 January 2012 through an amendment of the Criminal Procedure Code by the Prevention of Terrorism Act 2011.  He is being supported by Rechtskomitee LAMBDA, whose president, Dr. Helmut Graupner, is also his defence counsel.

Full details of the case, and the problematic application of this law, from the Rechtskomitee LAMBDA press release issued today are included in full below (English version is slightly modified from the original release; German is the original.)

From 1 January 2012: Forced Hiv-Testing: Rechtskomitee LAMBDA supports case in the Constitutional Court

The Prevention of Terrorism Act 2011 also amended the Criminal Procedure Code. It makes forcible HIV-testing legal as of 1 January 2012, despite the fact that the Constitution prohibits taking blood by force. A case has already been brought to the Constitutional Court.

The Prevention of Terrorism Act 2011, passed by federal parliament in October 2011, legalizes taking blood by force in order to prove the misdemeanor of Endangering Human Beings by Transmittable Diseases (§ 178 Criminal Code). Up to now forcible blood taking (in the case of not intoxicated defendants) had been restricted to sexual felonies or other felonies incurring a maximum penalty of five years.

Since 1 January 2012 this changed, despite the fact that the Constitutional Court prohibits forcible blood withdrawals, as no one may be forced to supply his body as evidence against him. The first case challenging this new power of the criminal police has already been taken to the Constitutional Court.

The applicant, who has no criminal record, is HIV-positive and asks the Constitutional Court to strike down the amendment. The state prosecutor has started proceedings against him under  § 178 CC after another HIV-positive man had accused him of infecting him with HIV. Indeed the two men had sex with each other years ago, but in accordance with the safer sex rules propagated by the Ministry of Health and the AIDS Service organisations (oral sex without ejaculation into the mouth).

Blackmailed and reported to the police

The accuser, who has a massive criminal record of violent, drug and property offences, reported the defendant to the police years after the sexual contact and only after the man refused to fulfil his considerable financial demands. In addition the accuser admitted during his interrogation that he had unprotected sex with others, and he had searched for casual sex (“sexdates”) in the internet displaying in his profile the information “Safer Sex: Never”. Even more so the man, according to his own depositions, is addicted to heroin and thus had been exposed also to other ways of transmission than the sexual one.

The case against the accuser (for aggravated blackmail) has been dropped immediately after the interrogation of both men due to “conflicting depositions”. Not so the case against the defendant for endangering by transmittable diseases (which offence is fulfilled just by engaging in unsafe sex without the necessity of causing infection). Also in regard to this offence there were “conflicting depositions” but the prosecutor wanted a blood test (for phylogenetic analysis).

Potential for conviction of innocents

A phylogenetic analysis however cannot prove an infection. And phylogenetic analyses bear the risk of false results and misinterpretation at the expense of a defendant. There are no standards (guidelines) so far for such analyses in forensic context and its results unfortunately again and again are misunderstood and misinterpreted by the courts. UNAIDS and the EU-Fundamental Rights Agency for years have been highlighting this.

So the man did not agree to blood withdrawal from him as he fears, because he is innocent, to be wrongfully convicted on the basis of such a blood test. Since 1 January he now is facing the danger of forced blood taking at any time. Therefore he has addressed the Constitutional Court.
  
“It is incredible that the governing coalition passed this unconstitutional law,” says president of Rechtskomitee LAMBDA (RKL) and defence counsel of the man, Dr. Helmut Graupner, “As too often we again have to hope for the Constitutional Court”.

Seit 1.1.2012: Zwangs-Hiv-Tests: Rechtskomitee LAMBDA (RKL) unterstützt Antrag an den Verfassungsgerichtshof

Das Terrorismuspräventionsgesetz bringt auch eine Novelle der Strafprozessordnung. Seit 1.1.2012 sind gewaltsame Blutabnahmen bei Verdacht einer Ansteckung mit Hiv zulässig, obwohl die Verfassung zwangsweise Blutabnahmen verbietet. Eine Beschwerde liegt bereits beim Verfassungsgerichtshof.

Mit dem im Oktober 2011 verabschiedeten Terrorismuspräventionsgesetz wurden Zwangsblutabnahmen bei Verdacht des Vergehens der Gefährdung von Menschen durch übertragbare Krankheiten (§ 178 Strafgesetzbuch) erlaubt. Bisher waren zwangsweise Blutabnahmen (bei nicht berauschten TäterInnen) nur bei Verdacht auf ein Sexualverbrechen oder auf ein (anderes) Verbrechen zulässig, das mit mehr als 5 Jahren Freiheitsstrafe bedroht ist.

Das ist seit 1. Jänner anders, obwohl der Verfassungsgerichtshof zwangsweise Blutabnahmen verbietet, weil niemand gezwungen werden darf, seinen Körper als Beweismittel gegen sich selbst zur Verfügung zu stellen. Die erste Beschwerde gegen die neue Befugnis der Kriminalpolizei liegt bereits beim Verfassungsgerichthof.

Der unbescholtene Antragsteller ist Hiv-positiv und beantragt die Aufhebung der Gesetzesnovelle. Die Staatsanwaltschaft (StA) hat gegen ihn ein Ermittlungsverfahren wegen des Verdachts gem. § 178 StGB eingeleitet, weil ihn ein anderer Hiv-positiver Mann beschuldigt, ihn mit Hiv angesteckt zu haben. Tatsächlich hatte der Mann mit diesem anderen Mann vor Jahren einvernehmlichen sexuellen Kontakt, jedoch entsprechend den vom Gesundheitsministerium und den Aids-Hilfen propagierten Safer Sex Regeln, also mit Sexualpraktiken, bei denen eine Ansteckung nicht möglich ist (Oralverkehr ohne Ejakulation in den Mund).

Erpresst und angezeigt

Der mehrfach wegen Gewalt-, Suchtgift- und Vermögensdelikten vorbestrafte Anschuldiger hat die Anzeige, in der er ungeschützten passiven Analverkehr behauptete, erst Jahre nach dem sexuellen Kontakt erstattet und erst nachdem der Beschuldigte nicht bereit war, seine erheblichen finanziellen Forderungen zu erfüllen. Zudem hat er selbst in seiner Einvernahme angegeben, anderweitig ungeschützte sexuelle Kontakte gehabt zu haben und hatte er im Internet flüchtige sexuelle Kontakte („Sexdates“) gesucht mit einem Profil, auf dem angegeben war: „Safer Sex: Niemals“.  Darüber hinaus ist dieser Mann nach seinen eigenen Angaben heroinsüchtig, und war daher, außer dem sexuellen noch anderen Übertragungswegen für eine Hiv-Infektion ausgesetzt.

Das gegen den Anschuldiger (wegen des Verdachts der schweren Erpressung) eingeleitete Strafverfahren wurde „wegen der widerstreitenden Aussagen“ sogleich nach Einvernahme der beiden Männer eingestellt. Nicht jedoch das Verfahren gegen den Beschuldigten wegen des Verdachts der Gefährdung durch übertragbare Krankheiten (wofür bereits unsafer Sex ausreicht, ohne dass es zu einer Ansteckung gekommen ist). Auch hier bestanden widerstreitende Aussagen, jedoch begehrte der Staatsanwalt eine Blutuntersuchung (phylogenetische Untersuchung).

Gefahr der Verurteilung Unschuldiger

Eine phylogenetische Untersuchung kann aber eine Ansteckung nicht beweisen. Und phylogenetische Untersuchungen bergen das Risiko falscher Ergebnisse und von Fehlinterpretationen zu Lasten des Beschuldigten Es gibt (noch) keine Standards (Richtlinien) für die Durchführung dieser Analysen zu gerichtlichen Zwecken und ihre Ergebnisse werden von Gerichten leider immer wieder missverstanden und fehlinterpretiert. Darauf weisen UNAIDS und die EU-Grundrechteagentur seit Jahren hin.

Der Mann hat daher einer Blutabnahme nicht zugestimmt, weil er befürchten muss, auf Grund der Testergebnisse unschuldig verurteilt zu werden. Seit 1. Jänner muss er nun jederzeit die gewaltsame Abnahme einer Blutprobe fürchten und hat sich daher an den Verfassungsgerichtshof gewandt.

„Es ist unglaublich, dass die Regierungsparteien, gegen die Opposition, diese verfassungswidrige Regelung beschlossen haben“, sagt der Präsident des RKL und Rechtsanwalt des Antragstellers Dr. Helmut Graupner, „Es bleibt, wie so oft, die Hoffnung auf den Verfassungsgerichtshof“.

Voices from the Field:
How Laws and Policies Affect HIV Responses

(5 mins, István Gábor Takács, 2011)

Delivered at the 29th meeting in December 2011, UNAIDS PCB NGO Delegation’s 2011 Report focuses on the importance of the legal environment to national HIV responses. For its findings, the NGO Delegation conducted a series of 27 focus groups, involving more than 240 participants from every region of the world.

This video, produced by István Gábor Takács of the Hungarian Civil Liberties Union, highlights the report’s key findings and recommendations to the Joint United Nations Programme on HIV/AIDS (UNAIDS) board and its Member States with regards to HIV strategies and related laws and policies.

Global Commission on HIV and the Law: High Income Country Dialogue (UNDP, 2011)

The Global Commission on HIV and the Law held a High Income Countries Dialogue on 17 September 2011 in Oakland, California.

A total of 65 participants from 15 countries discussed and debated region-wide experiences of enabling and restrictive legal and social environments faced by people living with HIV, other key populations and those affected by HIV in high income countries.

Since high income countries have accounted for the vast majority of criminal prosecutions relating to HIV non-disclosure, exposure or transmission, this video focuses on the part of the dialogue that heard testimony from policymakers, community advocates and experts from the Global Commission specifically on this issue.

The Regional Dialogue, hosted by the Global Commission on HIV and the Law, was jointly organized by UNDP, on behalf of the UNAIDS family, and the University of California, Berkeley Law, The Miller Institute for Global Challenges and the Law.

 

Verdict on a Virus (IPPF, UK, 2011)

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