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.
US: (Update) Nebraska passes unscientific, stigmatising body fluid assault law
Update: June 7 2011
I’ve just learned via my colleagues at the Positive Justice Project in the US, that The Assault with Bodily Fluids Bill (LB226) introduced into the Nebraska State Legislature by Senator Mike Gloor recently passed into law with no amendments.
For further background on the bill, and Sen. Gloor’s motivation for introducing it, read this excellent piece from Todd Heywood in The Michigan Messenger.
“The entire bill is hinged on gross ignorance about the actual routes and risks of HIV transmission,” says Beirne Roose-Snyder, staff attorney for the Center for HIV Law and Policy in New York City. “Nowhere in the nearly three-decades-long history of the epidemic has a corrections officer been infected by the routes described in the bill. As for serious misinformation, there is real harm caused to law enforcement staff who themselves may be living with HIV, and to those who are not but who are being sold an unsound bill of goods on how to protect themselves, by placing a legislative imprimatur on the unfounded fears about how HIV and other diseases are spread. It also clearly has a negative impact on the way people with HIV are treated in and out of the criminal justice system, and has resulted in people serving decades of time behind bars on the basis of ignorance and hysteria.”
This latest development is extremely disappointing, and suggests that the trend of passing new laws that inappropriately criminalise people with HIV (and, sometimes other blood-borne infections such as hepatitis B or C) in a misguided attempted to protect police or other public safety officers is not reversing.
A similarly unscientific and stigmatising bill – proposing mandatory testing and/or immediate access to medical records of anyone who exposes their bodily fluids to an emergency worker – has recently been proposed in British Columbia, Canada. Read this letter from the BC Civil Liberties Association about why the bill provides a false sense of security and may well be unconstitutional.
Original post: February 1st 2011
This Friday, February 4th, the Nebraska State Legislature will debate The Assault with Bodily Fluids Bill which would criminalise striking any public safety officer with any bodily fluid (or expelling bodily fluids toward them) and includes a specific increase of penalty to a felony (up to five years and/or $10,000 fine) if the defendant is HIV-positive and/or has Hepatitis B or C.
The Bill ignores the fact that HIV cannot be transmitted through spit, urine, vomit, or mucus; punishes the decision to get tested for HIV; and will not keep public safety officers safer, but rather will reinforce misinformation and stigma about HIV.
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| Download the full text of Nebraska Legislative Bill 226 here |
Two major problems with the Bill are:
1. The proposed language in Sec. 2(3) is contrary to science
- None of the actions criminalised in this Bill pose a real risk of HIV transmission. Spitting while HIV-positive poses no risk of HIV transmission. The Centers for Disease Control has unequivocally stated that spitting cannot transmit HIV. Other “body fluids” identified in the Bill – including mucus, urine, and vomit, absolutely cannot transmit HIV.
2. Codifying the breach of doctor /patient confidentiality in Sec. 2(5) is extremely serious, and should not be undertaken with no public health benefit
- It is extremely important for public and individual health for people with HIV to get tested at the earliest opportunity, start timely treatment, and stay on treatment. This all hinges on having a good relationship with their doctor or health care provider. Forcing doctors and health care providers to reveal private health information, or even testify about it, will have a negative impact on patient trust of the health care system and willingness to remain engaged in HIV care. The plain language in Sec. 2(5) would force any person charged under this statute to be tested for the identified viruses, or force the opening of their medical records for previous testing results.
The Positive Justice Project (PJP) has produced a set of talking points (download here) that summarises the problems with the Bill, and with HIV-specific legislation in general. PJP highlights that the wording of the Bill is so broad that it would allow for the following Kafkaesque situations:
- If a person with HIV accidentally vomits in the direction of a medical officer in a prison infirmary, they could be sentenced to five more years in prison.
- If someone accidentally sneezes in the direction of a police officer, a judge must grant a court order for their medical records and they may be subjected to involuntary HIV antibody and hepatitis B and C antigen testing if the police officer decides to press charges.
- An inmate who spits or vomits in the direction of a corrections officer, even without hitting or intending to hit the officer, can be forcibly tested for HIV and hepatitis and if found to have any of these viruses, charged with a felony.
- An adolescent with HIV or hepatitis held in a juvenile detention facility who spits while being restrained by a corrections officer, or while arguing with a guidance counselor, could wind up serving five years in an adult prison facility.
PJP asks anyone in the United States who cares about this issue to contact their State representative (using the talking points to highlight the many problems with the Bill) and specifically encourages any networks or individuals in Nebraska to contact:
State Senator Mike Gloor, who introduced the Bill.
District 35
Room #1523
P.O. Box 94604
Lincoln, NE 68509
Phone: (402) 471-2617
Email: mgloor@leg.ne.gov
Sandra Klocke
State AIDS Director
Office of Disease Control and Health Promotion
Nebraska Department Health and Human Services
301 Centennial Mall South, 3rd Floor
P.O. Box 95026
Lincoln, Nebraska, 68509-5044
Phone: 402-471-9098-
Fax: 402-471-6446
sandy.klocke@nebraska.gov
and/or
Heather Younger
State Prevention Manager
Disease Prevention and Health Promotion
HIV Prevention
Nebraska Department of Health and Human Services
301 Centennial Mall South
Lincoln, Nebraska, 68509
Phone: 402-471-0362
heather.younger@nebraska.gov
New Zealand: Charges dropped in criminal HIV transmission case
All charges against a Wellington man accused of not disclosing his HIV-positive status prior to unprotected sex with his female partner who subsequently tested HIV-positive have been dropped because police are unable to trace the complainant.
Not only did Justice Simon France drop the charges of “wounding with intent to cause grievous bodily harm” but also ordered that the man’s name be suppressed.
Jo Murdoch, a lawyer from the Public Defence Service, successfully argued in court that the man’s identifying particulars should be suppressed.
Justice Simon France said the issue became whether the man’s HIV status – a particularly private and sensitive medical fact – should be exposed when grave doubts had been raised about the alleged victim’s credibility.
The case did not have the public interest element of a person accused of having put multiple partners at risk or having risky casual sex. Also, the alleged crime was irrelevant to his employment and his contact with the public generally. Taken together the circumstances outweighed the usual principle that justice should be carried out publicly, Justice France said.
Details of the case are sketchy and come from a single story in today’s Dominion Post via Stuff.co.nz.
(Pdf of webpage here if link no longer works.)
Police said he did not tell his partner he had HIV, the couple had unprotected sex and she contracted the disease. The man said his partner of several years knew of his condition and that they always had protected sex.
Shortly before the trial was due, information came to light which, if true, would have affected a court’s view of her honesty. Police were unable to find her and thought she was hiding from them. They had wanted to check the information before expensive tests to see if the couple had the same strain of HIV.
The Crown offered no evidence against the man, resulting in a discharge which amounted to an acquittal.
US: Montana legislator’s HIV “ignorance in the first degree” exposed and denounced
Judicial ignorance is something I often highlight on my blog.
Sadly, it is most often (but not exclusively) seen in the United States – a place where a Michigan prosecutor believes that biting someone in self-defence is terrorism if the biter is HIV-positive; where a Texas defence lawyer believes people with HIV are potential “serial killers” if they don’t disclose before having unprotected sex because their HIV is a “deadly weapon”; and where a North Carolina judge believes that a man who attempts to bite a police officer on the ear is also a walking ‘deadly weapon’.
Today I’m adding a new label to my blog – political ignorance – inspired by two scary, crazy, and dangerous events in as many weeks.
On Tuesday, Montana Representative Janna Taylor (a Republican, of course) testified in favour of Montana keeping the death penalty by citing the example of the most heinous, murderous crime she could think of – prisoners with HIV aiming saliva and/or blood-soaked paper “blow darts” at prison guards in an attempt to kill them.
Yesterday, the video of Rep. Taylor’s comments, originally posted on YouTube by shitmyrepsaid went viral throughout the US bloggersphere – from Montana bloggers Don Pogreba and D Gregory Smith to more mainstream gay sites, Towleroad and Queerty.
[Update 11 February: LGBT health blog, Crowolf, features an email response from Rep. Taylor that states:
I have tried to answer every email, even the ones that were not professional, as you worded it. My words were very poorly chosen, and I apologize for them. Montanans with HIV are simply people living with a virus. I was intending to illustrate that there are scenarios we cannot currently conceive of that may warrant the death penalty, and to remove it from the available options for punishment at this time would be misguided. HIV transmission was not an appropriate example. Again, I sincerely apologize for my inappropriate and inelegant statement, and I encourage all Montanans to become better educated about HIV.
It’s all well and good to respond to individual emails, but there’s nothing yet on Rep. Taylor’s own website making her HIV u-turn clear to her constituents and rest of the America.]
The idea that HIV could be transmitted in this way, and that this could be considered not just murderous intent, but worthy of the death penalty, is a point of view so dripping in HIV-phobic ignorance that at first I thought it wasn’t worth blogging about. After all, it’s so scarily out-of-step with science that surely no-one would take her comments seriously. Why give her poisonous ideology any further oxygen?
But during a lengthy email discussion yesterday with Sean Strub, senior advisor to the Positive Justice Project (PJP) and Catherine Hanssens, executive director of the Centre of HIV Law and Policy which hosts the PJP, I was persuaded that this lawmaker’s ignorance provided an excellent opportunity to highlight exactly how HIV-related ignorance plays its part in the further stigmatisation – and criminalisation – of people with HIV.
More of that in a moment.
Now this wasn’t the only recent case of a US politician furthering HIV-related stigma in the name of ‘justice’. Just last week, as highlighted in my blog post here, Nebraska State Senator Mike Gloor introduced a bill into the Nebraska State Legislature that would especially criminalise people with HIV (and viral hepatitis) who assaulted a peace officer through body fluids – notably by spitting, or throwing urine at them. (Neither of these risk HIV exposure.)
In both cases, PJP reacted swiftly to the threat. They worked closely with advocates in Nebraska to fight against the proposed body fluids assault bill and despite local media coverage that appeared to suggest strong support for the bill, local advocates reported (in a private email to the various PJP workgroups – full disclosure, I’m a member of the media workgroup) that because of opposition testimony from ACLU-NE and Nebraska AIDS Project, good questions were raised by some Senators on the committee that may lead to them to seriously consider blocking this bill’s passage.
And last night, PJP put out a press release that highlights Rep. Taylor’s “ignorance in the first degree”.
When HIV-related ignorance and stigma emanates from the mouths of politicians and lawmakers, this becomes state-sponsored ignorance and stigma – the most dangerous kind, the kind that can lead to HIV-specific criminal laws, or provisions that turn misdemeanours into felonies resulting in significantly longer sentences for people living with HIV than those without.
Treating people with HIV as potential criminals when in fact we pose no real threat with the kind of behaviour politicians believe is ‘dangerous and criminal’, takes away our human and civil rights and furthers the public’s and media’s perception that people with HIV are something to be feared or hated.
PJP’s powerful and co-ordinated response is the kind of advocacy in action that needs to be replicated wherever the rights of people with HIV are threatened by ignorance and stigma.
The full text of the press release is below. It can also be downloaded as a pdf here.
Positive Justice ProjectDenounces Montana Legislator’s Uninformed Comments“…ignorance in the first degree…”
Contact:Catherine Hanssens, 347.622.1400chanssens (at) hivlawandpolicy.orgSean Strub, 646-642-4915sstrub (at) hivlawandpolicy.orgNew York, February 9, 2010 – Leading public health officials and advocates for people with HIV responded swiftly to news that a Montana state legislator, while testifying in favor of retaining the state’s death penalty statute, suggested that prisoners with HIV make paper “blow darts”, put their blood or saliva on them and throw them at prison guards in an attempt to kill them.
A video of the legislator’s comments was posted earlier today by blogger Don Pogreba at the Montana-based website intelligentdiscontent.com.
According to the federal Centers for Disease Control, HIV is not transmitted by saliva, and HIV in blood dies quickly after being exposed to air. HIV-infected blood does not survive outside the body long enough to cause harm, unless it penetrates mucus membranes.
The Positive Justice Project, a program of the New York-based Center for HIV Law & Policy, is a coalition of more than 40 public health, civil liberties and HIV/AIDS organizations combating HIV criminalization and the creation of a “viral underclass”; they oppose laws that treat people with HIV different from how those who do not have HIV, or who do not know their HIV status, are treated.
The Center’s executive director, Catherine Hanssens, said “Rep. Janna Taylor’s remark is ignorance in the first degree. Quite frankly, it is typical of the ignorance we had to deal with decades ago, early in the epidemic, when little was known about how the virus was transmitted. It is astonishing that an elected official today could be so fundamentally uninformed.”
Julie M. Scofield, executive director of the National Association of State and Territorial AIDS Directors (NASTAD), said “My plea to Rep. Taylor and legislators at all levels concerned about HIV is to do your homework, talk with public health officials and get the facts. Spreading fear about HIV transmission will only set us back in the response to the HIV/AIDS epidemic in Montana and every other state in the U.S.”
Other experts from Montana and national organizations also commented on Rep. Taylor’s remarks:
“Ms Taylor’s statement just shows the need for greater support and funding for HIV education and prevention in the State of Montana. Unfortunately, misinformation such as this is all too prevalent, leading to pointless discrimination and myth-based fears and policies. After 30 years of dealing with HIV, the public should be much better informed about its transmission. No wonder HIV infection rates haven’t stopped.”
— Gregory Smith, co-chair of the Montana HIV/AIDS Community Planning Group, a licensed mental health counselor and a person living with HIV
“I am disturbed and disappointed to hear such misinformation coming from a local government official, but sadly I am not especially surprised. As we enter the 30th year of this worldwide epidemic I am frequently reminded of the need for continued education and outreach, the facts are still not clearly understood by the general masses. Perhaps if we were more willing as a society to discuss more openly the risk behaviors that transmit the virus we would not find ourselves responding to such an insensitive and false statement.”
— Christa Weathers, Executive Director, Missoula AIDS Council, missoulaaidscouncil.org
“HIV infected blood cannot infect someone through contact with intact skin or clothing if the skin underneath is intact.”
— Kathy Hall, PA-C, retired American Academy of HIV Medicine-certified HIV Specialist, Billings, MT
“The comments made by the Montana Legislator really demonstrate total ignorance about how HIV is transmitted. If elected officials don’t understand the basic facts, how can we expect young people and those at greatest risk to understand them?”
— Frank J. Oldham, Jr., President, National Association of People with HIV/AIDS, napwa.org
“This is an example of people with HIV, especially those who are incarcerated, being stigmatized and used as fear-fodder by politicians whose ignorance and quickness to demonize people with HIV outweighs common sense and two minutes of Google research. Even when someone is exposed to HIV, a 28-day course of anti-HIV drugs used as post-exposure prophylaxis is effective in preventing HIV infection. It also isn’t a death sentence; those who acquire HIV today and have access to treatment generally don’t die from AIDS.”
— Sean Strub, founder of POZ Magazine, a 30 year HIV survivor and senior advisor to the Positive Justice Project.
****
The Positive Justice Project is the first coordinated national effort in the United States to address HIV criminalization, and the first multi-organizational and cross-disciplinary effort to do so. HIV criminalization has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission.For more information on the Center for HIV Law and Policy’s Positive Justice Project, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.
To see the Center for HIV Law and Policy’s collection of resources on HIV criminalization, go to: http://www.hivlawandpolicy.org/resourceCategories/view/2
The Positive Justice Project has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the Positive Justice Project working groups, email: pjp (at) hivlawandpolicy.org
Edwin J Bernard’s Keynote at Funders Concerned About AIDS: ‘Combating HIV Criminalization at Home & Abroad’ (2010)
Edwin J Bernard’s keynote presentation at the Funders Concerned About AIDS 2010 Philanthropy Summit, Washington DC, December 6 2010.
The slides for this presentation are available to donwload (as a pdf) here: bit.ly/fcaadec10
Ukraine: Revised HIV law may no longer mandate disclosure
A new version of Ukraine’s HIV-specific law, adopted by the Ukrainian Parliament in its first hearing on 21 October, promises several positive changes, including removal of the statute mandating disclosure of known HIV-positive status prior to any activity that may risk exposure.
According to a press release from the International AIDS Society, the following changes will be implemented:
- People living with HIV will no longer be barred from entering, staying or seeking residence in Ukraine based solely on HIV positive status;
- NGOs providing HIV treatment, prevention and care services will have the right to apply for state contracts
- People living with HIV will have the right to seek compensation for the unlawful disclosure of their HIV status
- HIV-positive injecting drug users (IDUs) and other IDUs will have the right to receive Opioid Substitution Therapy (OST)
- People living with HIV will be encouraged to disclose information about the risk of HIV transmission, however they will no longer be required by law to disclose their status to partners
WHO Europe notes
The revised law is the result of two years intensive and collaborative work, including the involvement of non-governmental sector, especially All-Ukrainian Network of People living with HIV, the support from the USAID-funded HIV/AIDS Service Capacity Project in Ukraine and the United Nations Team Group on HIV/AIDS. The change would not have been successful without a close collaboration with the Parliamentarian Committee on Public Health and its chair Dr Tatyana Bakhteeva who was very much committed to the issue.
Dr Volodymyr Kurpita, Executive Director of All-Ukrainian Network of People living with HIV told me in an email that since the final version of the revised Prevention of AIDS and Social Protection of Population Act is still awaiting parliamentary approval in the second hearing, the final wording of the law on HIV disclosure is still not known, but “we can highlight it is more progressive and less restrictive as previous one.”
In Ukraine, newly diagnosed individuals must undergo a period of mandatory hospitalisation during which it is expected that they will sign an undertaking to obey this 1998 disclosure law. The reckless or intentional “conscious exposing to danger of infection [HIV exposure], or infection [HIV transmission]” is also subject to prosecution, with a maximum penalty of ten years’ imprisonment. There have been at least six prosecutions and four convictions under these laws.
Global: AIDS 2010 round-up part 1: sessions, meetings and media reports
A remarkable amount of advocacy and information sharing took place during the XVIII International AIDS Conference held in Vienna last month. Over the next few blog posts, I’ll be highlighting as much as I can starting with a round-up of sessions, meetings, and media reports from the conference. A separate blog post will highlight posters, a movie screening and some inspirational personal meetings.
Sunday: Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward
A meeting that I co-organised (representing NAM) along with the Global Network of People Living with HIV (GNP+) and the Canadian HIV/AIDS Legal Network received quite a lot of coverage.
Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward was a great success with many of the 80+ attendees telling me it was Vienna highlight. The entire meeting, lasting around 2 1/2 hours, has been split into eight videos: an introduction; six presentations; and an audience and panel discussion. The entire meeting can also be viewed at the NAM and Legal Network websites, with GNP+ soon to follow.
Reports from the meeting focusing on different parts of the meeting were filed by NAM and NAPWA (Aus) and I was interviewed by Mark S King for his video blog for thebody.com.
Richard Elliott of the Canadian HIV/AIDS Legal Network, Moono Nyambe from GNP+ and UNAIDS’ Susan Timberlake – all of whom took part in the meeting – were interviewed for a piece in Canada’s Globe and Mail, with the headline, U.S., Canada lead world in prosecuting those who transmit AIDS virus: Criminal charges are justified only when infection is intentional, activists contend.
The same day, an editorial in the Globe and Mail completely undermined the rather balanced article by stating, quite bluntly
Disclosing one’s status is, of course, a difficult and emotional journey, fraught with potentially negative consequences. HIV-positive people can be marginalized, and discriminated against in terms of housing, employment and social relationships. However, the collective rights of this minority group cannot take precedence over their individual responsibility not to infect others.
It concluded
But in Canada the law is clear: Exposure without disclosure is a crime. And that is a good thing.
Judging by the comments left by readers of both articles, although there is some sympathy for the person with HIV, there’s a long way to go before Canadian hearts and minds are won over by the anti-criminalisation advocacy movement.
Wednesday: Policing Sex and Sexuality: The Role of Law in HIV
Lucy Stackpool-Moore (IPPF) and Mandeep Dhaliwal (UNDP)co-chaired a satellite session on the Wednesday that included presentations by Anand Grover, UN Special Rapporteur on Right to Health, and my colleague Robert James of Birkbeck College, University of London.
Thursday: HIV and Criminal Law: Prevention or Punishment?
This debate included discussion of criminalisation from the point of view of increased stigma. Lucy Stackpool-Moore again contributed. The session was not only recorded by the rapporteur, Skhumbuzo Maphumulo, but also reported on by PLUS News.
Thursday: Leaders against Criminalization of Sex Work, Sodomy, Drug Use or Possession, and HIV Transmission
This was the session with the highest profile names (rapporteur summary here). Chaired by Stephen Lewis, Founder of AIDS Free World, it was left to none other than Festus Mogae, Former President of Botswana, and a member of the Global Commission on HIV and the Law, to make a statement against the criminalisation of HIV exposure and transmission: “Criminalisation of HIV transmission is…futile”, he said, quite a few times. (Audio of his statement, at around 38:00, can be heard here).
Although it was mostly a repetition of some of the well-worn public health and human rights reasons already presented two years earlier by Edwin Cameron at AIDS 2008, it is significant that a former president of an African country made this statement, given the ‘legislation contagion‘ that has occurred on that continent. President Mogae noted that he had written to some of his estwhile colleagues pleading with them not to pass HIV-specific laws in their countries. With more than 25 African countries with such laws on the statute books and at least another eight African countries considering them, I think they need some more convincing.
This was the only oral abstract session at AIDS 2010 dedicated exclusively to the criminalisation of HIV exposure and transmission, and I was honored to have two abstracts represented. The rapporteur summary is here.
I’ve already included a blog posting on my presentation, which you can see here. The other presentations included Criminalization of HIV transmission and exposure and obligatory testing in 8 Latin American countries, presented by Tamil Rainanne Kendall. (Audio and slides here); Tanzania case study on how AIDS law criminalizes stigma and discrimination but also stigmatizes by criminalizing deliberate HIV infection, presented by Millicent Obaso (Audio and slides here); and If there is no risk and no harm there should be no crime. Legal, evidential and procedural approaches to reducing unwarranted prosecutions of people with HIV for exposure and transmission, presented by Robert James (and co-authored by yours truly). (Audio and slides here).
The session was also reported on by aidsmap.com.
Thursday: Late Breakers (Track F)
This session included three oral abstracts on criminalisation of HIV exposure and transmission.
A quantitative study of the impact of a US state criminal HIV disclosure law on state residents living with HIV, presented by Carol Galletly. (Audio and slides here).
Roger Pebody of aidsmap.com provides an excellent summary of her findings here
Under [Michigan] state legislation, people with HIV are legally obliged to disclose their HIV status before any kind of sexual contact. Disclosure is meant to occur before sexual intercourse “or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body”. This would include even fingering or the use of a sex toy.
Carol Galletly reported on a study with 384 people with HIV who live in Michigan (but recruitment methods and demographics were not fully described). Three quarters of respondents were aware of the law.
She wanted to see if the existence of the law had any impact on her respondents’ behaviour. Comparing those who were aware of the law with those who were not, people who knew about the law were no more likely to disclose their HIV status to sexual partners. Moreover they were not less likely to have risky sex.
On the other hand, approximately half of participants believed that the law made it more likely that people with HIV would disclose to sex partners. Having this belief was associated with being a person who did disclose HIV status to partners.
In fact a majority of participants supported the law. Individuals who Gallety characterised as possibly being marginalised were more likely to support the law: women, non-whites, people with less education and people with a lower income.
The two other presentations were: HIV non-disclosure and the criminal law: effects of Canada’s ‘significant risk’ test on people living with HIV/AIDS and health and social service providers, presented by Eric Mykhalovskiy (Audio and slides here) and Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso presented by Patrice Sanon (Audio and slides here).
Other media reports
Other reports mentioning the criminalisation of HIV exposure and transmission published during the conference include:
A piece in the Montreal Gazette, headlined, Advocates raise concerns over prosecuting HIV-positive people
The troubling increase in the number of new HIV cases in Canada may be attributed to the country’s reputation of being a world leader in prosecuting HIV-positive people who fail to disclose their status, according to one group of AIDS advocates. “We’re looking at rising numbers of infection, especially among certain risk groups,” said Ron Rosenes, vice chair of Canadian Treatment Action Council. “And now we’re looking at the criminalization issue as one of the reasons people have been afraid to learn their status.”
Edwin J Bernard: Where HIV Is a Crime, Not Just a Virus (AIDS 2010)
Edwin J Bernard presents a global overview of laws and prosecutions at the XVIII International AIDS Conference, Vienna, 22 July 2010.
Abstract: Where HIV is a crime, not just a virus: a global ranking of prosecutions for HIV non-disclosure, exposure and transmission.
Issues: The global (mis)use of the criminal law to control and punish the behaviour of PLHIV was highlighted at AIDS 2008, where Justice Edwin Cameron called for “a campaign against criminalisation”. However advocacy on this vitally important issue is in its infancy, hampered by lack of information on a local, national and international level.
Description: A global overview of prosecutions to December 2009, based on data from GNP+ Global Criminalisation Scan (criminalisation.gnpplus.net); media reports collated on criminalhivtransmission.blogspot.com and WHO Europe pilot human rights audit. Top 20 ranking is based on the ratio of rate per year/per HIV population.
Lessons learned: Prosecutions for non-intentional HIV exposure and transmission continue unabated. More than 60 countries have prosecuted HIV exposure or transmission and/or have HIV-specific laws that allow for prosecutions. At least eight countries enacted new HIV-specific laws in 2008/9; new laws are proposed in 15 countries or jurisdictions; 23 countries actively prosecuted PLHIV in 2008/9.
Next steps: PLHIV networks and civil society, in partnership with public sector, donor, multilateral and UN agencies, must invest in understanding the drivers and impact of criminalisation, and work pragmatically with criminal justice system/lawmakers to reduce its harm.
Video produced by georgetownmedia.de
US: Nushawn Williams “poster child” of newly proposed HIV-specific law faces a lifetime of civil confinement (update 2)
Update: July 20th
A New York Supreme Court judge in Buffalo has dismissed Nushawn Williams’s petition for release and ruled he could remain in jail while awaiting his October trial under New York’s Civil Confinement Law.
Update: May 11th
No big surprise, but a New York State Supreme Court judge has ruled that Nushawn Williams “poses a danger to society and as a result, must remain behind bars even though his sentence is complete.”
State Supreme Court Justice John Michalski said there is probable cause that Williams suffers from a “sexual abnormality” that would pose a danger to society.
With the ruling, Williams could now face a trial to determine his future status.
Both sides are due back in court next month as they hold arguments over a defense motion to dismiss the case.
Original post: April 23rd
The impact of the 1997 Nushawn Williams case continues to reverberate in New York. Following last year’s denied request for parole, there are now plans to keep him locked up forever by New York’s Attorney General .
The New York Times reported on April 13th
Mr. Williams, 33, was due to be released on Tuesday after serving his maximum sentence of 12 years, but Mr. Cuomo’s office is seeking to keep him in custody under a three-year-old state law that permits the civil confinement of sex offenders. Last Friday, a state judge in Buffalo, near where Mr. Williams has been jailed, ordered that he remain in custody pending the outcome of a civil confinement proceeding.
Now, State Senator Cathy Young of Olean is not only urging Cuomo to keep Williams in civil confinement but also proposing a new HIV-specific law for New York using Williams as a “poster child”. Back in February 2009, Suffolk County District Attorney Thomas Spota teamed up with Parents for Megan’s Law to advocate for the same thing.
Here is Senator Young’s press release, featuring her proposed law in full.
Senator Cathy Young (R,I,C – Olean) today renewed her call for a law making it a crime to knowingly spread the deadly HIV/AIDS virus to other unsuspecting people. Senator Young’s announcement comes in the wake of news that Nushawn Williams, the man who caused an AIDS epidemic in Chautauqua County in the 1990s, had completed his prison sentence and could be released to the public.
Senator Young also called on New York State Attorney General Andrew Cuomo to rigorously fight to ensure that Williams remains confined in a psychiatric facility and is not let back out into the community.
“People who knowingly use HIV/AIDS as a deadly weapon by purposely exposing others to the disease should be severely punished. This proposed law would provide the appropriate penalties for those who callously put other people’s lives in jeopardy, and will help further prevent the transmission of HIV/AIDS by keeping victims and prison supervisors informed when inmates test positive for the virus.”
State Attorney General Andrew Cuomo has announced that he is seeking, under New York’s Sex Offender Management Act, to have Williams confined in a state-operated psychiatric facility.
Senator Young said, “Nushawn Williams is the poster child for why we need a civil confinement law in New York State. I urge Attorney General Cuomo to do everything in his power to ensure that Williams remains confined. This deadly predator must not be returned to society.”
Senator Young’s legislation would create the crimes of reckless endangerment of the public health in the 1st and 2nd degrees for people who test positive for HIV/AIDS and then recklessly engage in conduct which results in transmission of HIV/AIDS to another unsuspecting person or puts that person at substantial risk of contracting HIV/AIDS.
The bill would also, among other provisions, required persons charged with a sex offense or reckless endangerment of the public health to be tested for HIV/AIDS and the results to be available to the victim (s) upon request.
The announcement in the fall of 1997, that Nushawn Williams had been informed of his HIV-positive status but continued to have unprotected sex with numerous women and underage girls in Chautauqua County, shocked the state and the nation. Williams was directly responsible for infecting thirteen victims statewide with HIV, two of whom passed on the virus to their children.
Williams completed his 12-year sentence for reckless endangerment and two counts of statutory rape last Tuesday, but continues to be held at Wende Correctional Facility in Alden.
While in prison, Williams tossed his HIV-tainted urine at another inmate, said he wanted to infect more women with HIV when he is released, fought with other prisoners, engaged in gang activity, and arranged to have drugs smuggled in and used them. He did not complete any sex offender or drug treatment programs.
In a required pre-release psychiatric evaluation, Williams was found to be antisocial, psychopathic, lacking in remorse and “prone to further sexual contact with underage individuals because of deficits in his emotional capacity to understand why this is wrong.”
Specifically, Senator Young’s legislation (S. 3407) would:
– Create the crime of reckless endangerment of the public health in the 1st degree, a class B felony, for those who are aware that they have tested positive for HIV/AIDS and then recklessly engage in conduct which results in transmission of the virus to another person who is unaware of the condition. Also creates the crime or reckless endangerment of the public health in the 2nd degree, a class C felony, for those who have tested positive and then engage in conduct which creates a substantial risk of the transmission of HIV/AIDS to another unwitting person;
– Create a class E felony for providing false information or statement regarding HIV status to a health care provider;
– Require all currently incarcerated persons and persons newly entering a correctional
facility be tested for the HIV virus;
– Provide that a person charged with a sex offense under article 130 of the State Penal Law or reckless endangerment in the 1st or 2nd degrees must be tested for HIV and the results of the test made available to the victim (s) and defendant upon request;
– Provide that upon the diagnosis of an inmate with HIV/AIDS, notice of the diagnosis must be provided to corrections personnel and others involved in the supervision and care of the inmate to that they can take appropriate measure to protect themselves and other inmates from exposure.
Global: UNAIDS/UNDP supports Swiss statement, announces new Global Commission on HIV and the Law
Following on from yesterday’s post about the report by the UN Special Rapporteur on the Human Right to Health, on the impact of criminalisation, UNAIDS and UNDP have issued a statement welcoming the report. (Click here for the pdf: full text below)
One of the most intriguing things about this statement is its recognition that antiretroviral therapy significantly reduces the risk of infection on an individual level, something UNAIDS has not previously supported.
It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.
The footnote following the phrase “greater impacts for individuals” states:
The Swiss National AIDS Commission (EKAF) has stated that “an HIV-infected person on antiretroviral therapy with completely suppressed viraemia (‘effective ART’) is not sexually infectious, i.e. cannot transmit HIV through sexual contact.” However, the Commission qualifies its statement, noting that it is considered valid only so long as: (a) the person adheres to antiretroviral therapy, the effects of which must be evaluated regularly by the treating physician, and (b) the viral load has been suppressed (below 40 copies/ml) for at least six months, and (c) there are no other sexually transmitted infections. See P Vernazza et al (2008), “Les personnes séropositives ne souffrant d’aucune autre MST et suivant un traitment antirétroviral efficace ne transmettent pas le VIH par voie sexuelle”, Bulletin des médecins suisses 89:165-169. Available on-line at http://www.saez.ch/pdf_f/2008/2008-05/2008-05-089.PDF
This contrasts with the extremely non-committal statement UNAIDS made jointly with WHO immediately after the Swiss Statement.
But that’s all water under the bridge, I guess. Yes, any laws that prevent people from knowing their status and accessing treatment are bad. But we must fight to ensure that treatment’s impact on infectiousness is always a secondary factor to the individual’s choice regarding whether and when to start treatment. Treatment must be treatment first, prevention second. That’s a big part of the work I’m currently doing for GNP+ and UNAIDS producing a new framework for positive prevention known as Positive Health, Dignity and Prevention.
Another significant part of the UNAIDS/UNDP statement is the first public announcement of a new Global Commission on HIV and the Law (which had been called the International Commission on HIV and Law or ICAL in documents I’d previously seen) “which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations.”
The Commission will be officially launched later this month.
Statement by the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations Development Programme (UNDP)
14th Session the Human Rights Council
Agenda Item 3: Promotion and protection of all human rights, civil,
political, economic, social and cultural rights, including the right to
development7 June 2010
GenevaMr President, distinguished delegates, ladies and gentlemen,
The UNAIDS Secretariat and UNDP thank the Human Rights Council for the opportunity to speak under this agenda item. As this Council knows, for almost 30 years, the world has sought the most effective response to the HIV epidemic. This challenge has repeatedly shown that a human rights-based approach to HIV is the most effective approach to HIV.
This fact has been long recognized by the Commission on Human Rights, this Council and by Member States. This is because human rights and legal protections are essential to enable people to get the HIV information and services they need, to avoid infection, and if HIV positive to disclose their status and get treatment. It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.
Many States continue to criminalize sexual minorities, people who use drugs, people
who engage in sex work, as well as people living with HIV. The result is that thousands of people fear or are unable to get tested for HIV, to disclose their HIV status, to access HIV prevention, treatment and care. This puts both these groups and the larger public at risk. Under these circumstances, universal access to HIV prevention, treatment, care and support will not be realised; and we will not achieve many of the Millennium Development Goals.Because of this, the Executive Director of UNAIDS, Michel Sidibé, has made one of the corporate priorities of UNAIDS to support countries to “remove punitive laws, policies, practices, stigma and discrimination that block effective AIDS responses.”
For these reasons, the UNAIDS Secretariat and UNDP welcome the report of the Special Rapportueur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. We hope it will help to generate constructive debate, and catalyse change toward a more rights-based and effective AIDS response.
The report of the Special Rapporteur underlines how the criminal law, when misused, can and does have a very negative impact on the right to health. When the criminal law is applied to adults engaging in private consensual sexual behavior – whether in the context of same-sex sexual orientation or in the context of the exchange of money for sex – it also violates the rights to privacy and liberty and acts as a major impediment to HIV prevention and treatment. Where overly broad criminal laws are applied to people living with HIV, the impact is in direct contradiction to public health efforts to encourage people to come forward to get on treatment and practice safe sex, and reduce HIV transmission in the context of drug use.
The UNAIDS Secretariat and UNDP are fully aware that, in many societies, these issues are the subject of much social, cultural and religious debate. However, the UNAIDS Secretariat and UNDP are concerned that criminalization of aspects of private, consensual adult sexual conduct singles out particular groups for invidious treatment, undermines individual and public health, and transgresses various international human rights norms. Thus, for public health and human rights reasons, the UNAIDS Executive Director and the United Nations Secretary General have called for the removal of punitive laws, policies and practices that hamper the AIDS response. Successful AIDS responses do not punish people, they protect them.
UNDP, on behalf of UNAIDS, is launching the Global Commission on HIV and the Law, which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations. The UNAIDS Secretariat and UNDP greatly hope that this Commission will help States and civil society to better use law, law enforcement and access to justice to protect all people from HIV and its impact, as well as from human rights violations in the context of HIV. We look forward to bring to the Council the findings of the Commission at the end of 2011.
Thank you.