The 24th international AIDS conference (AIDS 2022) held in Montreal and virtually between 29 July and 2 August integrated HIV criminalisation throughout multiple sessions – both in the main conference and during pre-conferences, satellites and in the Global Village.
Australian activist, lawyer, Track F rapporteur – and HJN Supervisory Board member – Paul Kidd has provided a thorough overview of many of these sessions in this Twitter thread, which can also be read as a single blog entry here.
Two major campaigns were launched at the conference – one global, and one focused on Canada.
GNP+ and HJN joined with networks representing young people, women, the LGBTI+ community, sex workers and people who use drugs to launch the “Not A Criminal” Campaign to decriminalise HIV non-disclosure, exposure and transmission; same-sex relationships; sex work and drug use.
As part of the “Not A Criminal” Campaign, we are demanding countries remove bad laws and replace them with evidence-based legislation to protect our communities from criminalisation, discrimination and gender-based violence, and support the creation of independent human rights institutions. Additionally, the campaign calls on United Nations agencies and donors to develop strong, coordinated, and high-profile mechanisms to monitor progress on these member states’ commitments.
“Far from being a legitimate public health tool, criminalisation of our behaviours, choices and identities is about the enforcement of an oppressive morality through policing our bodily autonomy,” HIV Justice Network’s Executive Director Edwin J Bernard said in a press release announcing the campaign. “This punishment of our vulnerability also means we won’t be able to end the HIV epidemic by 2030.”
The Canadian Coalition to Reform HIV Criminalization (CCRHC) made the most of the spotlight on Canada during the conference and launched its second Community Consensus Statement. This Statement calls on the Canadian government to change the Criminal Code to limit HIV criminalisation only to very rare cases of intentional transmission using appropriate existing criminal statutes. Canada’s Justice Minister, David Lametti has since announced plans to launch a consultation this October on the criminal legal system’s overly draconian response to HIV non-disclosure.
However, the biggest – and most welcome – surprise of the conference was the recipient of the Elizabeth Taylor Legacy Award which was presented during Saturday’s prime session on HIV and Human Rights. Previous recipients have included Nancy Pelosi, Sharon Stone, Whoopi Goldberg, Michael Jackson and Elton John.
This year’s Elizabeth Taylor Legacy Award was presented posthumously to the late Rosemary Namubiru – recognising her extraordinary contribution to raising awareness of the injustice of HIV criminalisation.
Lillian Mworeko of the International Community of Women Living with HIV – East Africa (ICW-EA) received the award on behalf of Rosemary’s family. Rosemary’s daughter had planned to be there, but – like many Africans – was denied a visa.
Our own @lmworeko received the Posthumous Elizabeth Taylor legacy award on behalf of Rosemary Namubiru & her family in 🇺🇬. Rosemary, a dedicated nurse, was imprisoned for her HIV status. @richardlusimbo called upon everyone to confront HIV criminalisation #AIDS2022pic.twitter.com/3sBB9mvPRA
UGANET joins the family of the late Rosemary Namubiru and the HIV Community at large to celebrate the posthumous Elizabeth Taylor AIDS Foundation Award awarded to her in Montreal, Canada, on 30th July 2022.
Rosemary was a dedicated nurse as well as a mother and grandmother – and a courageous HIV criminalisation survivor. In 2016, at our Beyond Blame pre-conference to AIDS 2016 in Durban, South Africa, she spoke with great dignity about her horribly unjust experiences at the hands of the criminal legal system and media.
In January 2014, Rosemary was wrongfully accused of intentionally exposing a child to HIV while administering an injection. The child did not acquire HIV. However, the accusations created a media frenzy at a time when Uganda was discussing whether to enact the HIV Prevention and Control Actthat, amongst a number of problematic provisions, allows for stringent punishments for the vague ‘crimes’ of attempted and intentional HIV transmission.
The inflammatory media coverage, which included showing her arrest live on television, meant that she was found guilty in the court of public opinion long before her trial, singled out and vilified in the press because of her HIV-positive status.
Originally charged with attempted murder, she was eventually convicted of criminal negligence. However, on appeal, the judge found that her initial three-year sentence was excessive and ordered her release after she served 10 months in prison.
Rosemary was supported at the time by several advocacy and human rights organisations including the International Community of Women Living with HIV, Eastern Africa (ICWEA), Uganda Network on Law, Ethics and HIV/AIDS (UGANET), The National Forum of People Living with HIV in Uganda (NAFOPHANU) and AIDS-Free World.
Following her release, in a meeting arranged by AIDS-Free World, media editors finally heard her side of the story and apologised to her. ICWEA continued to support Rosemary following her release, and remained in touch until her death.
This experience has totally changed my life. My self-esteem is gone and this has tarnished more than 30 years in the nursing profession, which I loved so much. I still struggle to overcome that fateful day when I woke up in the morning to go and save lives, only to be beaten down by the world.
I now know first-hand that stigma, especially among healthcare workers, is real. I’ve lost everything. I had a job, I was the breadwinner for my family, and I belonged to a community. I would give anything to be able to go back to my old self. I still need support to regain my strength, start generating an income again, and feed my family.
It is my hope that by telling my story it will show the real struggle we face against stigma and criminalisation. I saw it all, I faced it all, and I don’t want anybody else to go through it. Together, we need to fight for others who are experiencing these acts of injustice.
UPDATE JULY 2022
In July 2022, Rosemary was posthumously awarded the Elizabeth Taylor Legacy Award at AIDS 2022 in Montreal.
Previous recipients include Sharon Stone, Whoopi Goldberg and Elton John.
The award recognised her extraordinary contribution to raising awareness of the injustice of HIV criminalisation.
Lillian Mworeko of the International Community of Women Living with HIV – East Africa (ICW-EA) received the award on behalf of Rosemary’s family.
Our own @lmworeko received the Posthumous Elizabeth Taylor legacy award on behalf of Rosemary Namubiru & her family in 🇺🇬. Rosemary, a dedicated nurse, was imprisoned for her HIV status. @richardlusimbo called upon everyone to confront HIV criminalisation #AIDS2022pic.twitter.com/3sBB9mvPRA
UGANET joins the family of the late Rosemary Namubiru and the HIV Community at large to celebrate the posthumous Elizabeth Taylor AIDS Foundation Award awarded to her in Montreal, Canada, on 30th July 2022.
For many years, HIV activists and researchers have criticised the stigmatising way that HIV criminalisation cases are covered in the mainstream press. However, an ethnographic study recently published in the Canadian Review of Sociology argues that the working conditions in which journalists now operate makes it extremely challenging for them to improve their reporting on HIV criminalisation.
With the shift to online news creating revenue challenges, newsrooms are under pressure to produce more content with fewer staff. This has resulted in journalists relying on police press releases as sources of news for crime stories, including HIV criminalisation. The author of the study argues that, without targeted efforts to disrupt the mainstream narrative on HIV criminalisation, “this type of newswork makes it likely that longstanding patterns of sensational, stigmatising news will persist.”
Previous studies highlight how reporting on HIV criminalisation often makes people living with HIV seem dangerous to society and exaggerates the risks of HIV transmission. Such messaging frequently relies on harmful gender and racial stereotypes and serves to increase stigma towards people living with HIV and other marginalised communities. It also has serious negative repercussions for those individuals involved in cases, making them ‘eternally googleable’ which can prevent them from gaining employment or housing.
HIV criminalisation laws in Canada are especially severe, with people living with HIV at risk of conviction for non-disclosure of their HIV status to sexual partners – even when transmission has not occurred.
Dr Colin Hastings of Concordia University in Canada wanted to understand how journalists go about writing stories on HIV criminalisation, with the hope that this might reveal opportunities for HIV activists and advocates to improve reporting on this topic. He therefore undertook ethnographic interviews with 20 journalists and one police communications representative. The interviews generally started with a question asking the participants to describe a typical workday and explored the conditions which influence their everyday activities.
Findings
The interviews revealed that the pressure on journalists to produce a constant flow of content across multiple platforms hinders their ability to conduct fact-checking or more in-depth investigation. A reporter described how he considers:
“Every hour as a deadline… so sometimes I’m like, ugh, this story could have been so much better had I had time to go through everything.”
In this context, repurposing ready-made text from other sources represents a quick and efficient strategy for producing content. When writing crime stories, this usually means relying on press releases issued by the police – whose communications departments are adept at ensuring that their texts flow easily into newsrooms.
An online web editor described how her work consisted of “copy and pasting it pretty much” while a reporter said:
“With the police, I just usually do the stuff they send out, they send a daily update of what’s happening on their side, the police side, and usually I take a look at that and re-write those.”
Many of the interviewees felt this was an unfortunate but inevitable fact of contemporary journalism, as they struggle to keep pace with the unrelenting online news cycle. Yet the interviews demonstrated how the reliance on police press releases means that it is not only information provided by the police but also the police’s perspective on an event that is repackaged as ‘news’.
A police communications representative mentioned in their interview that a key factor in the police’s decision to publish a press release about a case is whether they believe there is a threat to public safety. This threat is made clear by combining an individual’s name, photo, and personal information with descriptions of criminal charges they face and language emphasising the danger they pose – for example, “police are concerned there may be more victims”.
In the context of HIV criminalisation, this means equating non-disclosure of HIV with dangerous criminality. Journalists covering crime stories often do not have the experience, time, or resources to question this, as outlined by a veteran reporter:
“HIV non-disclosure was always covered as a crime if the police think it’s a crime… the cops say this is a crime, and you say oh god this is a crime, crime is bad, this person is a bad person.”
The language of public safety also serves as a signal to journalists that a case may be particularly newsworthy. A breaking news reporter said:
“They [the police] might say very clearly that there is a huge public safety element… Language like that is a really good indicator [of newsworthiness] for us.”
What determines newsworthiness is also directed by what is likely to be read and shared widely. ‘Good’ headlines are those that draw the highest volume of readers to the story. An experienced reporter named Lisa explained how this creates pressure to choose more salacious wording for headlines about HIV criminalisation:
“You can write two headlines for your story, and the [software] system will push them out there and then you can see which headline is attracting more clicks so that at a certain point you can just bail on the more boring headline and go to the salacious headline that’s working better.”
As well as the police press releases serving to provide journalists with ready-made sources of content, the police communications representative recognised the work of journalists as a cost-effective and time-efficient part of policing work:
“We now see regularly criminals surrendering shortly after we put their pictures up. And if you think about, our main account we reach thousands of people, but if a news organization with 1.75 million retweets, it means everyone in the city is going to get it… Out of all the stuff that we do, that’s the most satisfying because no one expects us to be able to get a homicide investigation to surrender, and these things are very expensive and very time consuming.”
Given that the police often reinforce social, racial, and economic inequities in society, this extension of their influence is likely to be perceived by many as a worrying development.
Conclusion
This study exposes how the pressure on journalists to produce a constant flow of online news content has reduced many to copying and pasting police press releases, since they have little time to investigate and provide further context. This results in journalists reproducing the perspective of the police in news coverage, which constructs people living with HIV as a threat to public safety.
Hastings notes that not all of the journalists interviewed felt comfortable with the reliance on police press releases as sources of news. Yet their working conditions have made it increasingly difficult for them to disrupt problematic news coverage.
While acknowledging the significant contributions already made by HIV activists to improving media coverage of HIV criminalisation stories, Hastings makes the following suggestions for activists’ efforts:
Producing texts (such as press releases) that can compete with those published by the police
Campaigning to update and reform journalistic style guides which reporters follow when crafting a story
Producing specialised guides for reporting on social justice issues
Supporting and investing in news organizations and alternative presses that practice slower, long-form journalism
Expanding the efforts of community-based organizations to produce their own messaging through independent publishing, social media campaigns, or in-person community forums
For years, HIV activists in Canada have expressed serious concerns about the stigmatizing and sensational way that HIV criminalization is portrayed in the mainstream press. Discourse analyses of the content of news stories about HIV criminalization confirm that news reports of HIV criminal cases rely on sensational language and reproduce negative stereotypes of people living with HIV. This paper contributes to social justice scholarship in the area by building upon studies of news content to uncover how news reports of HIV criminalization are produced in the first place. Through institutional ethnographic interviews with journalists who produce news stories about HIV criminalization, this study brings into view that conditions of convergence journalism make it exceedingly difficult for reporters to disrupt the genre of crime stories about HIV criminalization in which stigmatizing discourses proliferate.
The proverb says, “It takes a village to raise a child”. But what if a mother in the village is living with HIV, and some of the villagers stigmatise her? What if that stigma creates a situation where the mother living with HIV is unjustly criminalised because of her HIV status? Then it takes more than a village to get justice for that woman. It takes a global movement to end HIV criminalisation to sensitise and train lawyers and expert witnesses. It takes national communities of women living with HIV to support that woman following her release, and to educate the community in which she lives about HIV.
Introduction
In 2016, a Malawi court convicted a woman living with HIV of “negligently and recklessly doing an act likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code. She had attended a village meeting with her baby which she breastfed as usual before passing the child to her grandmother. Another woman then asked her to hold her baby. It was alleged that this child began breastfeeding briefly before the woman realised what was happening. The child’s mother then reported the incident to the police. The woman was arrested and without legal advice or representation, pleaded guilty, was convicted, and sentenced to nine months’ imprisonment with hard labour.
In addition, the accused woman was taking antiretroviral therapy. The chances of HIV transmission through even long-term breastfeeding are very low (which is why WHO guidelines recommend it when access to infant formula and clean water are limited) and the chances of transmission during the brief period the baby allegedly fed were infinitesimally small. In fact, the accused woman’s own child, who was routinely breastfed, has not acquired HIV, calling into question any suggestion that she intended to cause harm to the other woman’s child. Perversely, for a system that unjustly condemned her for risking harm to the other woman’s child, her own baby was imprisoned with her, without any arrangements for appropriate feeding and care, negating any notion that the legal system’s purpose was to protect children.
Following media reports of her initial conviction, numerous individuals and organisations – including HJN and our HIV JUSTICE WORLDWIDE partners, ARASA and SALC – became involved in the case, ultimately changing the outcome for the woman and her family, and laying the groundwork for further anti-HIV stigma advocacy and education in the region. Her story demonstrates the vital role that education, training, strong networks, and community play in the pursuit of HIV justice.
Living with HIV-related stigma
When interviewed at her home in 2019, the woman referred to as “EL” talked about her life:[1]
[1] The initials EL are used instead of her full name following a court order of anonymity to protect her privacy. The interview took place in 2019, during the village visit described later in this article.
“As kids, there were the two of us — me and my brother. My parents faced challenges raising us. Finding the basic necessities like soap and food was a tall order, let alone talking about going to school. It was difficult to get learning materials as well as proper clothes to wear at school. I worked hard in class but couldn’t get past Standard 5 at primary school. Eventually I dropped out, and my brother did the same, … My daily life was taken up doing house chores just like any other girl in the village, as well as helping my parents with farming. At 16, I got married.”
EL further described how she was diagnosed HIV-positive in 2015 after a de facto compulsory HIV test at an antenatal visit. She already had two children and was pregnant with her third. She had heard about HIV but did not know much about it. EL said that the healthcare workers provided a lot of assistance, giving her accurate information about HIV, including the importance of adhering to her antiretroviral treatment (ARVs).
EL and two of her children. Photo: Amos Gumulira/UNDP Malawi
EL said that she generally enjoyed life in her village, although at times she was subject to stigma and discrimination:
“When I went to fetch water at the community borehole, people would laugh at me, and whenever I wanted to participate in community work, you would find pockets of community members talking ill about me. Some people used to insult me, calling me names. But I persevered because my relatives, including the Village Headman himself, gave me support and always stood by my side.”
Members of EL’s family also faced discrimination. “Due to lack of information, a lot of people thought HIV was hereditary and because I was diagnosed HIV-positive, this meant that all my family members had HIV, and they were discriminated against,” EL said.
EL wonders if more could have been done to help her fight stigma. In particular, EL gained a lot of knowledge about HIV from the counselling she got when diagnosed, but perhaps she could have been better equipped with information to share with people in her community:
“A lot of people don’t know that if you adhere to ARVs, you reduce the risk of transmitting HIV to others. This information needs to be passed on to many people. There are also other issues to do with ARVs. A lot of people don’t have adequate information on the effects of ARVs and at the end of the day, they start pointing fingers at each other, giving people room to start speculating about issues to do with witchcraft.”
EL’s prosecution had repercussions for her whole village. One woman from the community explained:
“I was there and very close to where EL was sitting. Yes, she was carrying another woman’s child. This other woman had given the child to EL for safe keeping while she went to stand in a queue, but honestly speaking, I didn’t see EL breastfeed the child. I just heard some people who were sitting a distance from where we were sitting, as they started pointing accusing fingers at her.”
She said that things moved so fast that before they could think of anything to stop what she called “the rumour.” It had gotten out of hand and people started saying that EL had intentionally breastfed the child to transmit HIV.
After receiving a summons, EL voluntarily turned herself in at the police station. She was accompanied by the Village Headman (her grandfather) who wanted first-hand information about what crime she was alleged to have committed. That same day, police transferred EL to a larger town, where she was remanded for three days. At the age of 29, this was the first time that EL had ever left her village.
Days later, she appeared in court and the charge sheet was read out. EL recounted that she had not understood what was happening and could not make arguments because she had no legal representation. EL agreed with the summary of events as they were described, so she was found guilty and was imprisoned together with her youngest child.
She described life in prison as “hell”:
“After a week, my brother showed up to give me my ARVs. All this talk about a woman with HIV breastfeeding. I breastfed but I also found it tough to feed my baby while in prison because there was no provision of special food for babies. We were eating nandolo (pigeon peas) almost every day with Msima ya Mgaiwa (maize meal). And there was only one toilet for a cell of more than 50 people.”
After some time, relatives and other members of her community started visiting, giving her money she could use to buy soap and food for her baby. “When we heard from our Village Headman that she had been arrested, we were so devastated”, a woman from EL’s village explained. “We raised funds for some members to go and give her support only to learn that she had been transferred to one town, then another, but some of us did manage on several occasions to visit her and offer our support when she was in prison.”
Then, out of the blue, EL received a message that some people had come looking for her. She went to meet them: a lawyer, Wesley Mwafulirwa, and his paralegal. They explained why they were there and asked if she would like them to appeal on her behalf. She accepted enthusiastically. “I was excited but at the same time I was confused because I could not believe that I could be so lucky to have these people come to help me.”
Fighting the charges
Solicitor Wesley Mwafulirwa had volunteered to attend training to address legal barriers to prison health and human rights presented by the Southern African Litigation Centre (SALC). He travelled from Malawi to South Africa to attend the training which addressed useful regional and international mechanisms, and presented insights about legal practice and strategic litigation to support prison health and human rights, particularly for those facing heightened vulnerability to HIV and TB.
At the training, two lawyers spoke about their pro bono work. Wesley remembers one of them, Allan Maleche (Executive Director of KELIN), saying that each participant should take at least one case when they go back to their country. It was a turning point in Wesley’s career.
He had not been home long when he saw an article in the newspaper about an HIV-positive person convicted for trying to spread HIV. That person was EL.
Wesley, who lives in a small town in northern Malawi, drove for more than ten hours to get to the jail where EL was incarcerated. He explained his determination, saying “I was so fired up! I’d just come from SALC’s training … and I said, ‘I want to take up this case’.”
Wesley interviewed EL and offered to take her case pro bono. Wesley contacted SALC, who offered technical support. Their first step was to get an order for anonymity to protect EL’s identity and gain greater control over media reporting. Next, they faced an ethical question. They wanted to challenge the constitutionality of the law but that would take a long time. Because EL was in prison, they decided to undertake a criminal appeal instead. They applied for EL to be let out of custody on bail pending appeal. This is usually a difficult application to win, but they were successful and EL was released from prison.
In the appeal, the court was asked to consider whether the conviction could be justified, whether the penal provision was constitutional (arguing it was overly broad and vague), and whether the sentence was manifestly unjust. Wesley used his learnings from the SALC training to raise international principles and instruments relating to sentencing, which the court referenced and upheld. Michaela Clayton, then Executive Director of the AIDS and Rights Alliance for southern Africa (ARASA), and now a member of HJN’s Supervisory Board, provided expert testimony. Another expert witness, Dr Ruth Brand, identified through HJN’s global network, gave expert scientific evidence to show the risk of HIV transmission had been “infinitesimally small.”
The case was heard by Honourable Justice Zione Ntaba, who held that the proceedings in the trial court were irregular and “blatantly bias” against EL, compromising her right to a fair trial. Justice Ntaba found the charge sheet had been defective and therefore EL’s plea should not have been recorded as guilty. She noted the law must be sensitive to the accused’s knowledge or belief (or lack of) that HIV would be transmitted. Justice Ntaba decided the conviction could not be justified, acknowledging human rights principles against the overly broad criminalisation of HIV non-disclosure, exposure, or transmission. EL’s sentence was set aside. (The Constitutional challenge was referred to a full-member panel of the Constitutional Court although the case was not pursued.)
Notably, Justice Ntaba was a member of the African Regional Judges Forum to discuss HIV, TB and Human Rights (a process which is owned and planned by the judges and run with support from UNDP and funding from the Global Fund).
Fighting the stigma
Shortly after EL’s arrest, the Coalition of Women and Girls Living with HIV and AIDS in Malawi (COWLHA) and the Malawi branch of the International Community of Women Living with HIV/AIDS (ICW-Malawi) discussed the case at a roundtable meeting. At first, everyone was surprised and even laughed, questioning how she could have breastfed someone else’s child. They had never heard of a criminal case involving infant feeding and did not understand what they were dealing with.
During their discussions, COWLHA and ICW-Malawi agreed that the prosecution of EL was a manifestation of stigma and misinformation about HIV in the community. They learned more about the unjust measures that EL had experienced, like being imprisoned without being given a chance to be heard and not being given the chance to prepare and take her medication and things she needed to care for her child. COWLHA and ICW decided to get involved.
Representatives from COWLHA and ICW meet with members of EL’s village. Photo: COWLHA/ICW
Concerned that EL could face social and community hostility after her release, COWHLA and ICW planned a visit to the village to provide psychosocial support to EL and to work with traditional community leaders to provide community sensitisation on HIV, addressing issues of stigma and discrimination. Their efforts helped change some community members’ ideas about HIV.
The community formed two support groups— one for youth and another for adults (notably both were predominantly female groups). They have conducted numerous activities, including home visits, supporting children to go to school, helping the elderly with house chores, and they have a garden where they grow vegetables and rice. They hoped to access loans to become self-reliant. They also had a list of issues they wanted to learn more about, including preventing mother-to-child transmission, sexual and reproductive health, positive living, stigma and discrimination, and treatment literacy.
Visiting EL at home
In September 2019, a three-member team comprising Edna Tembo (Executive Director of COWLHA), Charity Mkona (ICW Board Chair), and Peter Gwazayani (media consultant), set out for EL’s village.
The team was welcomed by the Group Village Headman, who took them to EL’s house. EL recognised Edna from the work COWLHA and ICW-Malawi had done in the community previously. EL welcomed the team with a big smile.
EL and her husband looked cheerful as they laid a mat on the veranda of their house for the visitors. Her mother later joined the discussion.
EL was interested to learn that HJN wanted to write about her case and the type of interventions that had been helpful, to share the story with advocates for HIV justice around the world.
EL recounted that when she returned to the village, “most members of my community received me with happiness, particularly my relatives. The day I arrived, they were jubilant. They celebrated with songs that we normally sing during special occasions in the village.”
COWLHA ED Edna Tembo and Charity Mkona of ICW chat with EL, her husband and her mother (at far distance). Photo: COWLHA/ICW
EL lives with her husband, five children and her mother in a compound made up of three grass thatched houses. She introduced her children:
“The oldest is 13 and she goes to school, as do the second and third. The fourth, a little girl, is the child I was with in prison. She has not yet started school. And then there is this one, who I am breastfeeding. She is the fifth one. She has been tested for HIV on two occasions and will be going for the last test soon. The other two tests have come back HIV-negative.”
EL’s accuser and her family still lives in the same village which has presented some difficulties. EL said that on several occasions she had tried to greet them when they passed each other, but she had been ignored. “They don’t talk to me but from deep down in my heart, I have no grudges against them,” EL said. “I am just living my normal life,” EL says, although now she says that she would never agree to carry anybody else’s child, for any reason.
Moving beyond criminalisation
With respect to the community-level interventions, lawyer Annabel Raw, who worked at SALC during the time they supported the EL case said:
“As lawyers, we would never have thought to consider such an intervention had ICW-Malawi and COWLHA not shared their insights and been willing to support the client and her community. Their work has been so important to ensuring that meaningful justice was done to combat the actual root cause of the prosecution — stigma and discrimination — and to reconcile EL with her community.”
Engaging with the community also influenced ICW-Malawi and COWLHA’s thinking about HIV criminalisation. COWLHA’s Edna Tembo noted that:
Supporting people who have been prosecuted, particularly women, gives them power, … However, it is very important to stress that psychological support is absolutely vital for those who have been prosecuted. That includes family support, and a supportive community environment enabling acceptance of an individual accused.”
Tembo was also quick to emphasise that there is more work to be done. That work includes awareness raising and ongoing support to the community, especially to identify and train volunteers, empowering them to provide services at community level and to link them to health facilities and district offices for continued support and mentorship.
EL carries her youngest child home. Photo: Amos Gumulira/UNDP Malawi
EL described her dreams for the future:
“My wish now is to see my children progress in school so that they become productive citizens in this community and help it grow. That’s my dream. If they get educated, they will be able to stand on their own and support others. My husband is not employed and it is a challenge to get money for school fees for our children. We would love to get a loan or training to have greater knowledge of economic empowerment because we want to be self-reliant. We would then love to lease some land to grow rice to sell to pay back the loan.
“It’s also my wish to see the lives of all people in the community uplifted. We farm but on a small-scale. If we were to be supported with funds, I’d love to see the community establish big rice farms, working in groups, harvesting for consumption and for sale. In so doing, we would be able to uplift our lives for the better.”
Further Information
Learn more about Wesley’s experiences in EL’s case here and here.
Learn more about the African Regional Judges Forum here.
The full High Court judgement is available here, with a summary included here.
Read more about the successful HIV and AIDS Management Act community advocacy here.
This article is based on information provided by ICW-Malawi and COWLHA following their visits to EL’s village, and an interview with Wesley Mwafulirwa published by UNDP. HJN provided financial and logistical support for the village visits thanks to a grant provided to the HIV Justice Global Consortium from the Robert Carr Fund for civil society networks.
Canada: HIV Legal Network publishes new guide to assist journalists in reporting responsibly about HIV criminalisation cases
This guide is an evidence-based resource to assist journalists in Canada in reporting responsibly and accurately about alleged HIV non-disclosure and resulting criminal cases.
People living with HIV in Canada can be prosecuted for “aggravated sexual assault” (one of the most serious charges in the Criminal Code) if they don’t tell their sexual partners, in advance of intimate contact, that they have HIV. The criminalization of “HIV non-disclosure” is severe and rooted in stigma: people face charges even in cases where there is little or no risk of transmitting HIV. The maximum penalty is life imprisonment, and a conviction carries with it a mandatory designation as a sex offender. This approach has been criticized, both domestically and internationally, as being contrary to human rights and principles of public health, including by United Nations experts. Instead of reducing HIV transmission, HIV criminalization is now recognized by many experts as a driver of the epidemic.
There have been dramatic advances in treating and preventing HIV, which have resulted in a gradual change in public discourse and understanding. But there’s still a lot of misinformation. Media can play a vital role by modernizing the discussions we’re having about HIV and by reporting about HIV non-disclosure in an evidence-based and responsible way that doesn’t perpetuate stigma.
THE National AIDS Trust has moved to quell fears that anyone could contract HIV via bloodied clothing after a woman was fined for threatening to infect a police officer in Newtown last week.
This week C. pleaded guilty to assaulting an emergency worker when she appeared at Welshpool Magistrates Court.
The 35-year-old was brought in to custody at Newtown Police Station on August 26 covered in blood – which she claimed belonged to someone else – and became abusive, eventually stripping and throwing the bloodied clothes at custody sergeant Grace Coburn, telling her the clothes had hepatitis and HIV on them.
Sgt Coburn was told by C. that she probably also “had Covid as well”.
But the trust – the UK charity dedicated to transforming society’s response to HIV – has responded to the “misinformation” presented by the case, moving to reassure people that HIV cannot be transmitted in this way.
Danny Beales, head of policy and campaigns at the National AIDS Trust, said: “It’s disappointing to read that HIV is still being used as a threat in 2020.
“The stigma and misinformation that surrounds HIV mean that cases like this are far too common. We would reassure readers that there is no risk from HIV on bloodied clothing as the virus is very fragile and does not last long outside the body.
“Also, the majority of people living with HIV in the UK are on effective treatment which means they cannot pass on the virus in any way.”
C. was given a £200 fine and will pay compensation of £50 to the officer. She will also pay £85 costs.
US: Interview with JoAnn Wypijewski on the Nushawn Williams’s case, a “signpost on the road to the criminalization of HIV”
Sex panics keep happening because they tap into Americans’ deepest fears about the need to protect innocents from the threat of evil — fears that are endemic among the Left as well as the Right. Meanwhile, lives are destroyed in the process.
JoAnn Wypijewski’s new book, What We Don’t Talk About When We Talk About #MeToo: Essays on Sex, Authority and the Mess of Life, is a collection of her writing over several decades about sex, class, and liberation – and what we all lose when we surrender to moral panic. In the book, she explores and complicates narratives surrounding AIDS, the “pedophile priest” scandals that have plagued the Catholic church, #MeToo, and many others.
What is a sex panic?
JW – It’s a social eruption fanned by the media and characterized by alarm over innocence imperiled. That innocence, historically and stereotypically, has belonged to white women and children. The sex panic always involves some form of bad actor. Usually the bad man, the predator, is a lurking, mutable, social presence, a menace against which the population can be mobilized. Anthropologist Roger Lancaster calls this a “poisoned solidarity.” You can go back to Birth of a Nation. You can go back to the white slavery panic of the 1880s. Or a more modern period: the 1950s, where the Red Scare was a form of moral panic, and there was a “lavender panic” at the same time.
“Superpredators,” the priests scandal, the Satanic panic — all have featured a tremendous amount of media attention and repetition of a storyline that cannot be questioned: a narrative of good versus evil where the evil one is out there doing something to the good, and the evil authorizes all the bad that the good can do.Anything can be done to the bad man. And those doing it can feel a tremendous sense of vindication and social validation. That has accomplished something very practical: it has helped to build the prison state. According to a terrific book called The War on Sex, sex crimes are the fastest-growing cause of people being imprisoned. As leftists, we have to be concerned about that. But it’s also culturally developed a turn of mind that there are some people against whom anything is justified.
LF – Let’s talk about one of those people. Tell us about Nushawn Williams.
JW – Nushawn Williams was a young man from Brooklyn in the 1990s who was a petty drug dealer involved in various criminal activities, who, along with a number of other young people at the time, went upstate to sell drugs and to have what would be probably a better life. He went to the town of Jamestown, about seventy miles southeast of Buffalo, where I grew up. He was very popular with women and very successful as an entrepreneur. He was arrested at one point and tested for HIV, and he was told he was HIV-positive.
Perhaps he didn’t believe it or was in denial — we don’t know — but he continued to have sex with young women. A bunch of them turned up HIV-positive, and the state did something it had never done before. It took his mugshot and put it on a poster that said, “Public health threat, warning, warning, danger. If you’ve had sex with this man, come down immediately for a test.” And then it counseled those looking at this poster that their identity would be completely confidential. Of course, they had just busted his confidentiality! But the fact is that Williams did everything that the state wanted. When he was told he was HIV-positive, they asked him, “Who did you have sex with?” He gave them all the names.
LF – There’s a contemporary resonance here. As we’re rediscovering now with COVID-19, contact tracing is hard because people often do not cooperate with the authorities to the extent that he did. Nushawn Williams was a model participant in this process.
JW – He was a model participant!
This case was a signpost on the road to the criminalization of HIV, a blaring alarm: “There is an HIV predator among you.” He was on the cover of all the tabloids and the New York Times, and on CNN and in the world press.And all the stories were the same. He was a “lethal Lothario.” He was the devil himself. He was a monster, he was a demon, he was an HIV predator, and this was just declared. These young women were all interviewed. They’d said a variety of things which came down to, “I thought I was in love. He gave me gifts. I thought he would be around. I’m so sad and broken now.” And that was pretty much the story, except for one woman who said, “I don’t know, I won’t join in on this. I loved him once. I’m not going to demonize him.” This woman was eighteen years old.I thought, “She’s the one I want to talk to.” And I met her in jail. She was in jail for breaking probation. And then I met some other people who either had been with him or had been in the same world as he was, and I explored that.The whole town was suddenly embracing young women who it never had any interest in, at all. They were “trash.” I mean, I would not call them that, but that’s how they were perceived. But suddenly they were the flower of Jamestown. Suddenly they were innocent girls who had been defiled by this awful monster, this animal, this predator. And suddenly they were humanized. They were humanized as victims.Some had no way of certainly knowing [that they got the virus from Williams]. And the authorities were completely uninterested in how he may have contracted the virus.I always think of every story I do as a class story. That’s my background. Before I started writing about sex, I was mostly writing about labor and class and unions and union politics, but always, I was interested in the people involved and their particularities. I couldn’t talk to Williams. [His lawyers declined to make him available for interviews.] But I was interested in the world of the women and the world of the town. After that story appeared, people in Jamestown were upset. They said, “You make it out as if the whole town is terrible.”
LF – Well, it did sound like a depressing place, but you also make clear that it was no more depressing than many other American cities.
JW – The guy who became mayor, Sam Teresi — he was then the development director — was straightforward about what deindustrialization had done to the country. This was the mid-’90s, but while people tend to see deindustrialization as an effect of NAFTA, in that part of New York state and in New York City, it had all started much sooner, in the late ’60s. Then, by the late 1970s, everything starts shutting down. So, in Buffalo, where I grew up, where my uncle worked in the steel mill, my father worked in a factory as a tool and die maker — for the company that invented the windshield wiper — all of us were affected. Catastrophe hit these towns and these cities. Teresi was saying, even with the best plans that we have here in Jamestown trying to make something happen, no one’s going to make an oasis in the desert of deindustrialized America.
I think that’s pretty heavy, and I think people ought to have paid attention to that part of it, because why were these guys involved as [drug drealers]? There were no other avenues, certainly, for good wages. And the young women, if they weren’t in the business, they were working in screw factory making $6 an hour, and that’s the reality. And so sex in that context, and sex with Nushawn Williams in that context, was not the worst deal. He presented the best deal. And that should raise questions for all of us.It should also, as in every story, force us to recognize the humanity of every actor. That’s what I’ve tried to do. My whole career is to look at, even people who’ve done the worst thing, and try to see them not as monsters, not as demons, but products of a culture, of a society. They were once some little bitty baby in some mother’s arms, and something brought them to some point where, say, they kill Matthew Shepard out at the fence, or they do something heinous to prisoners at Abu Ghraib. Figures in the book exist within historical time and within social, cultural, and economic time. Their choices are confined the way all our choices are confined. There was no way for a Nushawn Williams to get a fair shake in this situation, He’d been declared a monster. He’d been declared public enemy. He’d been declared a criminal and had to be put away, and the state didn’t have particular laws criminalizing HIV, but it found other means. He was convicted of having sex with two underage women (statutory rape) and served twelve years in prison. Hard time.When he got out, the state decided that it was going to bring a case for civil commitment against him and declared him a “sexually dangerous” person. Then there was the kangaroo-type trial to prove that, which occurs all over this country. He was found indeed to be a sexually dangerous person, not for what he did, but for what he might do, and he joined some six thousand other people who are confined to mental institutions, detained indefinitely, without hope of getting out, supposedly for “treatment.”I think we need to look at the social mechanisms that organize consent for punishment.What’s always disturbing to me is that this ecstatic, panicky, moralizing approach is also embraced by the Left, by people who might shun, for instance, the Times reporting on terrorism.
LF – Yes, what about the sex exception on the Left? It seems especially jarring now, when ideas like the abolition of prisons and of police have so much traction, and restorative justice is a mainstream concept. The idea of due process would be taken for granted if someone was accused of murder, yet even people on the Left still demand the blood of anyone accused of a sexual violation.
JW – If we’re serious about culture and its formative power, then you have to look at the dominant culture that is the cauldron of current damaged life. We have to be serious about that, because it does form what James Baldwin called the “habits of thought” that reinforce and sustain the habits of power. I mean, toward authoritarianism. How we resist those habits of thought means separating yourself — or trying to — from them. That’s the work of a lifetime, because the propagandizing power of the culture is nonstop.
ABOUT THE AUTHORJoAnn Wypijewski is a journalist and the author of What We Don’t Talk About When We Talk About #MeToo: Essays on Sex, Authority and the Mess of Life.ABOUT THE INTERVIEWERLiza Featherstone is a columnist for Jacobin, a freelance journalist, and the author of Selling Women Short: The Landmark Battle for Workers’ Rights at Wal-Mart.
HIV criminalisation presentations and posters at AIDS2020
There were a number of presentations, mostly e-posters, at AIDS2020:Virtual that focused on HIV criminalisation. We have compiled them all below given that access was (and remains) limited.
The only oral presentations specifically covering HIV criminalisation were delivered by HIV Justice Network’s Executive Director, Edwin J Bernard, presenting in three pre-recorded video sessions.
Below you will find the presentation ‘Bringing Science to Justice’ for the IAPAC 90-90-90 Targets Update, produced for the session, ‘Creating Enabling Environments for Optimal HIV Responses’. This eleven minute presentation, that also includes a number of video clips, covers the following:
The detrimental implications of HIV criminalisation on human rights and public health
The impact of the ‘Expert consensus statement on the science of HIV in the context of criminal law’
Lessons learned from HIV criminalisation on punitive responses to COVID-19
Conclusion: It is more critical than ever to commit to, and respect, human rights principles; ground public health measures in scientific evidence; and establish partnerships, trust, and co-operation between scientists, law- and policymakers and the most impacted communities.
Update (29 July): During a California HIV/AIDS Policy Research Centers virtual satellite session, Dr. Ayako Miyashita Ochoa of UCLA Luskin School of Public Affairs, Department of Social Welfare, interviewed activist Marco Castro-Bojorquez about the modernisation of California’s HIV-specific criminal law as an example of of evidence-based policymaking.
There were a number of poster presentations that also focused on HIV criminalisation in the following countries/jurisdictions:
PEF 1737 United States
PEF 1738 England & Wales
PEF 1739 Australia
PEF 1740 Niger
PEF 1742 Malawi
PEF 1781 Florida, USA
PEF 1794 Uganda
PEF 1841 Taiwan
The abstracts are below. Click on the title to download the pdf of the poster.
BACKGROUND: In 2017, 36 states had laws penalizing persons with HIV (PWH) for sexual or no-risk behavior (e.g., spitting). Research shows these laws do not impact sexual risk behaviors or diagnosis rates. Citizens likely are unaware of these laws; we do not expect direct behavioral effects. However, laws reflect states’ values and may mirror community attitudes towards PWH. Understanding how structural factors relate to stigma is important for stopping HIV stigma. METHODS: National HIV Behavioral Surveillance used venue-based sampling methods to interview men who have sex with men (MSM) in 23 U.S. cities from June-December 2017. Using Center for HIV Law and Policy reports, we categorized states’ HIV-specific laws as of June 2017. We compared MSM”s perceptions of community attitudes towards PWH between MSM living in states with versus without HIV laws. We obtained adjusted prevalence ratios using log-linked Poisson models assessing the relationship between law and four community stigma attitudes (discrimination, rights, friendship, punishment), which we then compared between black MSM in states with versus without laws. RESULTS: Two-thirds of MSM lived in states with HIV-specific laws. MSM in states with laws were more likely to report black race (38% versus 15%), poverty (23% versus 12%), or incarceration (25% versus 19%). Multivariable models found laws were related to perceived community beliefs that PWH “got what they deserved” (aPR=1.13, 95% CI: 1.03-1.24), but not other attitudes. Compared to black MSM in states without laws, black MSM in states with laws were more likely to believe persons in their community would discriminate against PWH (64% versus 50%), not support PWH’s rights (25% versus 16%), not be friends with PWH (24% versus 13%), and believe HIV was deserved punishment (32% versus 22%). CONCLUSIONS: MSM in states with HIV laws were disproportionately from marginalized groups. Laws were related to perceived community attitudes that HIV was deserved punishment; understanding specific stigma attitudes can inform interventions. Although black MSM reported high community stigma overall, stigma was significantly higher for black MSM in states with HIV laws. States may consider repealing or reforming HIV laws and focusing on effective prevention efforts to End the HIV Epidemic.
BACKGROUND: In England and Wales it is possible to be prosecuted for the sexual transmission of infection under the Offences Against the Person Act 1861 or the Criminal Attempts Act 1981. After the first prosecutions in 2003, National AIDS Trust (NAT) successfully advocated for legal guidance for prosecutors and worked with the Crown Prosecution Guidance (CPS) to develop this. DESCRIPTION: In 2018 NAT requested that the guidance be updated. In January 2019 the CPS shared a draft of their revised guidance with NAT, who then coordinated a joint response from NAT and other key stakeholders. This successfully ensured that the new guidance reflects medical developments such as Undetectable=Untransmittable and clinical guidance. Developments in case law have led the CPS to take the view that HIV/STI status deception may be capable of vitiating consent to sex. NAT is concerned that this could result in people who lie about their HIV status being prosecuted for rape or sexual assault, even with safeguards used and no transmission occurring. NAT prepared a briefing articulating legal, policy and public health arguments against this position, and presented it at a meeting with the CPS. As a result the CPS have added several caveats, but we still believe their position to be unacceptable and discussions are ongoing. LESSONS LEARNED: The successes we have had in improving the guidance demonstrate the importance of long-standing proactive engagement, relationship-building and collaboration. Collaborating with a range of key stakeholders including clinicians and lawyers enabled NAT to leverage wider authority and expertise. However, the issue of HIV status deception has illustrated the implications for HIV of legal developments in related but not directly transferable areas. Confidence in our understanding of the law and persistence in making our arguments heard has been crucial in ensuring ongoing engagement on this issue. CONCLUSIONS: The updated guidance will help to ensure that prosecutions for reckless or intentional transmission are conducted in a way that minimises harm to both individuals and the wider community. Regarding the issue of HIV status deception, possible next steps include securing parliamentary engagement, pro bono legal opinions, and further representations from local government and public health bodies.
BACKGROUND: A significant portion of people convicted of HIV transmission in Australia are not Australian citizens. Due to not holding citizenship, those convicted of serious criminal offences (which includes facing a prison term of 12 months or more), are at risk of having their visas cancelled and being removed from Australia. The HIV/AIDS Legal Centre (HALC) has represented a number of these clients in both their criminal and subsequent immigration proceedings to assist these clients in preventing their removal from Australia. DESCRIPTION: Where a person is not an Australian citizen and commits a criminal offence they are at risk of detention and removal from Australia. In two recent case studies of people with HIV convicted of HIV transmission, following the completion of their custodial sentences steps were then taken to cancel their visas and place them into immigration detention. Both clients had their visas cancelled and had to take steps to appeal the decisions. Part of the reason for the cancellation was the perception of ongoing risk to the Australian community. Neither client had been convicted of intentionally transmitting HIV to their sexual partner. HALC continues to represent one of the clients mentioned and the other has now exhausted all appeal options. LESSONS LEARNED: There are often many and varied reasons for HIV non disclosure and, from HALC”s experiences, following criminal and public health interventions it is unlikely that a person with HIV would continue to place their sexual partners at risk of contracting HIV. Decision makers in migration proceedings appear to be unwilling to accept that a person with HIV would no longer place their sexual partner at risk of HIV transmission as the decision makers note in their decisions that they there remains a risk to the community. CONCLUSIONS: The outcomes of these cases demonstrates the need for ongoing advocacy and law reform in the removal of offences for HIV non-disclosure, exposure and transmission, except where actual intent can be established to a criminal law standard. The cases also demonstrate the ongoing need for continued robust representation of those, often vulnerable migrants, who are facing visa cancellation.
BACKGROUND: To effectively fight against HIV, Niger adopted Law No. 2007-08 of April 30, 2007 related on HIV prevention, care and control. This law included problematic provisions, including the criminalization of exposure, HIV transmission, and the non-disclosure of HIV to the sexual partner. Actually, PLWHIV continue to be victims of the application of the provisions criminalizing the transmission of HIV through several criminal prosecution cases in 2017. DESCRIPTION: In June 2018, 13 civil society organizations created the “National Coalition for the Decriminalization of HIV in Niger”. This one benefited from the technical and financial support of HIV JUSTICE WORLDWIDE. Its advocacy objectives, by 2021, are to : repeal of offenses criminalizing exposure and transmission of HIV ; research and disseminate reliable and convincing data on the impact of HIV criminalization on access to HIV-related services. Since its creation, the Coalition has carried out the following activities: National workshop for consulting civil society stakeholders on the exposure, transmission and non-disclosure of HIV in Niger; The development of the Memorandum of December 20, 2018 entitled ‘exploring ways and means to resolve the problems of legal proceedings against people living with HIV in order to reduce to zero the new infections, deaths and discrimination linked to AIDS; Organization of several advocacy meetings during the ‘zero discrimination’ day (March, 2019) for public decision-makers and partners. LESSONS LEARNED: Judicial police officers and magistrates have to exercise greater caution when considering a criminal prosecution, and in particular, carefully assess the latest scientific data on the risks of transmission and the consequences of the infection; National AIDS Control Program needs a comprehensive assessment of the application of criminal legislation on the transmission, exposure and non-disclosure of HIV status in order to measure its impact on the effectiveness of national response. CONCLUSIONS: The criminalization of HIV transmission undermines public health efforts and does not take into account the reality of PLWHIV and especially women who are not always able to disclose their HIV status without fear of reprisals or violence, or to impose the wearing a condom. The threat of possible criminal prosecution only increases their vulnerability.
BACKGROUND: Building on the work of the Global Commission on HIV and the Law, and in order to promote an enabling environment for achieving the 90-90-90 targets, UNDP has supported regional-and national-level work on removing legal barriers to accessing HIV services in sub-Saharan Africa. Covering over 20 countries, this work consists of regional-level capacity building for duty-bearers and rights-holders from the different countries and in-country activities tailored to local realities. DESCRIPTION: In 2019/20, we evaluated the impacts of this work through a review of project documents and key informant interviews with stakeholders including civil society representatives, government officials, and UNDP staff, and conducted an in-depth case study in Malawi. LESSONS LEARNED: Participation in regional spaces empowered national-level stakeholders in their country level work. A participatory legal environment assessment (LEA), jointly owned by government and civil society, served as the starting point and the resulting document, providing an overview of the strengths and weaknesses of HIV-related national laws and policies, has served as a cornerstone for subsequent activities. For example, national advocacy efforts informed by the LEA, and participation by the Chair of the Parliamentary Committee on HIV in regional activities, were key to shaping a revised HIV law to better align with international human rights law. The new law has led to the reform of the institutional framework for the national HIV response. Judges participated in regional judges’ fora where they could request information on HIV-related science, discuss lived experiences with key populations’ representatives and hear about how legal issues were being addressed across the region. Lawyers from across the region took part in joint training. After one such training, and with technical support from regional partners to create a strong case, a lawyer chose to appeal the conviction of a woman under Malawi’s law criminalizing HIV transmission. The presiding judge had attended regional judges’ fora and, drawing on a firm understanding of HIV transmission dynamics, overturned the original ruling. CONCLUSIONS: A mix of regional and national level activities allows for tailoring of activities to national contexts while also providing space for peer networking and support where ‘difficult’ issues might more easily be discussed.
BACKGROUND: According to the Centers for Disease Control and Prevention (CDC), as of 2016, 108,003 people live with HIV (PLHIV) in Florida, which also has the highest rates of new HIV diagnoses in the country. Numerous complexities worsen Florida’s HIV risk environment, including sex work, human trafficking, injection drug use, and sex tourism. These topics are often bases for HIV-related arrests that journalists cover. HIV criminalization describes statutes that criminalize otherwise legal conduct or that enhance penalties for illegal conduct based on a person’s positive HIV status. METHODS: This study employed a systematic review of Florida news articles on HIV-related arrests published between 2009-2019. Through qualitative content analysis, our study analyzed how race, gender, and journalistic tone coalesce in reports of HIV-related arrests. RESULTS: A 2018 report from the Williams Institute indicated that white Floridian women are primarily arrested for HIV-related crimes. The systematic review found zero news reports on HIV-related arrests of white Floridian women, and only one article identified a female perpetrator whose race was undisclosed. Sixty-four other articles reported solely on the HIV-related arrests of men, predominantly black men. We identified two categories of articles where HIV was either central to the arrest, or the person’s HIV-positive status was reported but exhibited little pertinence to the arrest. CONCLUSIONS: Journalistic and police reporting behaviors risk inadvertently stigmatizing PLHIV at a time when public awareness of HIV depends on perceptions of HIV. This information will be used to shape equitable local nonprofit campaigns for community prevention, and HIV decriminalization efforts, while also combating the perpetuation of HIV misinformation.
BACKGROUND: The purpose of the research: To assess the compliance of the Uganda HIV and AIDS Control and Prevention Act, 2014 (the Act) with international human rights law standards.
Problem: In 2014, the Government of Uganda enacted a law to control and prevent HIV and AIDS. However, human rights advocates contest that the law contains provisions that don”t comply with international human rights law standards. METHODS: Study period: August 2014 – August 2015 Study design: Qualitative design. Data collection: The study used a document analysis method. Method of analysis: The study identified international human rights law standards related to HIV and AIDS and used them as benchmarks for the review, analysis and synthesis of the literature. RESULTS: The study established that: The Act carries provisions that comply with international human rights law standards. These include HIV counselling, testing, and treatment; state responsibility in HIV and AIDS control; the establishment of the HIV and AIDS Trust Fund; HIV-related human biomedical research; and prohibition of discrimination in various settings on grounds of HIV status. The Act also contains provisions that are not compliant with international human rights law standards. These include mandatory HIV testing, disclosure without consent, criminalization of actual and attempted HIV transmission, and criminal penalties for vaguely defined conduct. The Act lacks provisions that would make it more effective in controlling and preventing HIV and AIDS. These include commitments by the state to be accountable for its obligations stated in the Act; definition of what constitutes discrimination in various settings; and addressing challenges such as the causes of discrimination, inadequate professional human resources at health facilities, lack of HIV-friendly services in health facilities, and unregulated informal sector in complying with the law. CONCLUSIONS: The study identified the compliance and non-compliance of the Act to international human rights law standards. It made recommendations to the Government of Uganda, organisations of people living with HIV and AIDS, organisations that advocate for human rights, and national human rights institutions, on the need to eliminate, revise and add some provisions in the Act to create an enabling legal environment that conforms with international human rights law.
BACKGROUND: Taiwan ranks top amongst the most progressive Asian countries, including being the first to pass marriage equality in Asia. Yet, stigma and discrimination of certain sub-populations, specifically people living with HIV (PLHIV) continue to prevail, as reflected in the Article 21 of HIV special law which overly criminalizes HIV non-disclosure, exposure and transmission. METHODS: Using qualitative and quantitative approaches, Persons with HIV/AIDS Rights Advocacy Association (PRAA) of Taiwan makes a case on how the current criminal justice system in Taiwan adapt the narrative of ‘HIV as a weapon’ to prevent PLHIV from asserting their rights. RESULTS:Article 21 states that individuals with knowledge of their HIV-positive status, by concealing the fact, engage in unsafe sex with others or share injection syringes, diluted fluids, and thus infect others, shall be sentenced for 5 to 12 years. Data showed over 30 cases were identified from 2012 to 2019, the majority of prosecutions were associated with sexual activities. However, unsafe sex was often defined exclusively with use of condom, and the court rarely recognized scientific advancements in antiretroviral therapy and suppressed viral load. Cases included: prosecution from ex-partner whom knew defendant’s HIV status before their relationship; state prosecution without plaintiff by turning 14 HIV-positive witnesses into defendants; 13-year incarceration despite medical expert’s testimony on the unlikelihood of HIV transmission. Those who haven’t been prosecuted continued to face both physical and emotional health threats, such as a woman threaten by her admirer to disclose her status if she turns him down. Bias and prejudice, worsen by difficulties in proving self-disclosure or condom use commonly resulted in convictions. CONCLUSIONS:Article 21 and out-of-date judicial interpretation of HIV transmission risks gravely deprive the rights of PLHIV and further perpetuates stigma against PLHIV and affected communities through special criminal law on HIV. There’s a strong case to be made for abolishing Article 21 under the Constitution of Taiwan and the International Bill of Human Rights. Training and support on HIV advancements shall be given to all members of judicial and criminal law system to further inform any application of criminal law in cases related to HIV.
Watch all the videos of Beyond Blame @HIV2020 – our “perfectly executed…deftly curated, deeply informative” webshow
Earlier this month, advocates from all over the world came together for two hours to discuss the successes and challenges of the global movement to end HIV criminalisation.
All of the recordings of Beyond Blame: Challenging HIV Criminalisation for HIV JUSTICE WORLDWIDE are now available on the HIV Justice Network’s YouTube Channel.
Kene Esom, Policy Specialist: Human Rights, Law and Gender, United Nations Development Programme (UNDP)
The full-length director’s cut version – with enhanced audio and video – is now available in English as well as with the audio track of the recorded simultaneous translation in French, Spanish, Russian, and Portuguese.
“We have been being battling this fight for many years. Since the start of the HIV epidemic we as gay men, as gay women, as queers, as transgender people, as sex workers, as people using drugs, have been persecuted by the criminal law. And I’m here to say, “Enough! Enough!
We have achieved a great deal with our movement, with the HIV Justice Network. We have achieved a great deal in conscientizing law makers, law givers and the public. It is now time for us to join in unison to demand the end of these stigmatising, retrograde, unproductive, hurtful, harmful laws.
It is a long struggle we’ve engaged in. And it’s one that has hurt many of us. Some of us here today, some of us listening in, some of us who have spoken, have felt the most brutal brush of the law. They have been imprisoned, unjustly prosecuted, unjustly convicted, and unjustly sent away.
HIV is not a crime. But there is more to it. Criminalising HIV, criminalising the transmission or exposure of HIV, as many countries on my own beautiful continent Africa do, is not just stupid and retrograde. It impedes the most important message of the HIV epidemic now, which is that this epidemic is manageable. I’ve been on antiretroviral treatment now for very nearly 23 years. My viral load has been undetectable for more than 20.
We can beat this, but we have to approach this issue as public health issue. We have to approach it rationally and sensibly, and without stigma, and without targeting people, and without seeking to hurt and marginalise people.We’ve made calamitous mistakes with the misapplication of the criminal law over the last hundred years, in the so-called ‘war on drugs’. We continue to make a calamitous mistake in Africa and elsewhere by misusing the criminal law against queer people like myself. We make a huge mistake by misusing the criminal law against people with HIV.
Let us rise today and say, “Enough!”
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