Livestream: HIV IS NOT A CRIME III National Training Academy: Plenary 6 – Leave No One Behind: Intersections of HIV Criminalization with Sex Work, Drug / Syringe Use, and Immigration (HJN, 2018)
Introduced by Allison Nichol SERO Project WASHINGTON DC Facilitated by Carrie Foote HIV Modernization Movement INDIANA With Tiffany Moore Criminalization survivor TENNESSEE Cris Sardina Desiree Alliance ARKANSAS Marco Castro-Bojorquez US PLHIV Caucus and HIVenas Abiertas CALIFORNIA Chris Abert Indiana Recovery Alliance INDIANA Zaniya James L.A.T.E. Project INDIANA
Side show interviews with Arneta Rogers Positive Women’s Network – USA CALIFORNIA
Livestream: HIV IS NOT A CRIME III National Training Academy: Plenary 5 – From Mexico to Colombia: The Latin-American Fight Against Criminalization (HJN, 2018)
Introduced by Naina Khanna Positive Women’s Network – USA CALIFORNIA Facilitated by Gonzalo Aburto SERO Project NEW YORK Dr Patricia Ponce Red Mexicana de Organizaciones contra la Criminalización del VIH MEXICO Ricardo Hernandez Forcada Red Mexicana de Organizaciones contra la Criminalización del VIH MEXICO Leonardo Bastidas Red Mexicana de Organizaciones contra la Criminalización del VIH MEXICO Brisa Gomez Red Mexicana de Organizaciones contra la Criminalización del VIH MEXICO Dr Alfredo Daniel Bernal Red Mexicana de Organizaciones contra la Criminalización del VIH MEXICO Paola Marcela Iregui Parra Universidad del Rosario COLOMBIA German Humberto Rincon Perfetti Lawyer COLUMBIA Interpreter: Liz Essary Cabina Event Interpreting INDIANA
Side show interviews with Diego Grajalez CNET+ Belize, Edwin J Bernard HIV Justice Network UK and Marco Castro-Bojorquez USPLHIV Caucus and HIVenas Abiertas CALIFORNIA
Livestream: HIV IS NOT A CRIME III National Training Academy: Plenary 4 – Towards Liberation: Advancing a Racially Just HIV Criminalization Reform Movement (HJN, 2018)
Introduced by Rebecca Wang Positive Women’s network – USA CALIFORNIA Facilitated by Kenyon Farrow The Body NEW YORK With Waheedah Shabazz-El Positive Women’s Network – USA PENNSYLVANIA Robert Suttle SERO Project NEW YORK Marco Castro-Bojorquez US PLHIV Caucus and HIVenas Abiertas CALIFORNIA Maxx Boykin Black AIDS Institute CALIFORNIA Naina Khanna Positive Women’s Network – USA CALIFORNIA Toni-Michelle Williams Racial Justice Action center GEORGIA
Side show interviews with Stacy Jennings BULI participant SOUTH CAROLINA and Barb Cardell Colorado Mod Squad COLORADO
Livestream: HIV IS NOT A CRIME III National Training Academy: Plenary 2 – Meaningful Involvement of People with HIV (MIPA), Leadership and Accountability (HJN, 2018)
Facilitated by Naina Khanna Positive Women’s Network – USA CALIFORNIA With Andrew Spieldenner US PLHIV Caucus CALIFORNIA Barb Cardell Colorado Mod Squad COLORADO Arianna Lint Arianna’s Center FLORIDA Malcom Reid THRIVE SS GEORGIA
Side show interviews with Maxx Boykin Black AIDS Institute CALIFORNIA Waheedah Shabazz-El Positive Women’s Network – USA PENNSYLVANIA Laurel Sprague Activist MICHIGAN Laela Wilding Elizabeth Taylor AIDS Foundation CALIFORNIA
Livestream: HIV IS NOT A CRIME III National Training Academy: Plenary 1b – North Carolina and State Legislators (HJN, 2018)
HIV IS NOT A CRIME III National Training Academy Live from the Indiana University-Purdue University Indianapolis, 4 June 2018 Running order (click on the time cues to jump there):
Live stream hosted by Mark S King www.myfabulousdisease.com
This live stream was brought to you by HIV Justice Network
Part 1: Modernizing North Carolina’s HIV Criminal Law Facilitated by Christina Adeleke North Carolina AIDS Action Network NORTH CAROLINA With Kara McGee Duke University NORTH CAROLINA Billy Willis WECAHN NORTH CAROLINA Terl Gleason AIDS Healthcare Foundation NORTH CAROLINA Lee Storrow North Carolina AIDS Action Network NORTH CAROLINA Q&A facilitated by Allison Nichol SERO Project WASHINGTON DC
Part 2: Behind the Scenes with State Legislators Facilitated by Sean Strub SERO Project PENNSYLVANIA With State Rep. John McCrostie State Representative IDAHO State Rep. Jon Hoadley State Representative MICHIGAN Jeanette Mott Empower Missouri MISSOURI
Side show interviews with Venita Ray Southern AIDS Coalition TEXAS and Edwin J Bernard HIV Justice Network UK
Livestream: HIV IS NOT A CRIME III National Training Academy: Plenary 1a – Survivors and California (HJN, 2018)
Introduction by Allison Nichol SERO Project WASHINGTON DC
Part 1: Criminalization Survivors’ Panel Facilitated by Robert Suttle SERO Projekt NEW YORK With Ariel Sabillon Student FLORIDA Monique Howell HIV criminalization survivor SOUTH CAROLINA Ken Pinkela SERO Project NEW YORK Kerry Thomas SERO Project IDAHO
Part 2: Forging the Path to Victory in California Facilitated by Naina Khanna Positive Women’s Network – USA CALIFORNIA With Craig Pulsipher APLA CALIFORNIA Arneta Rogers Positive Women’s Network – USA CALIFORNIA Scott Scholtes Lambda Legal ILLINOIS
Side show interviews with Edwin J Bernard HIV Justice Network UK and Venita Ray Southern AIDS Coalition TEXAS
Livestream: HIV IS NOT A CRIME III National Training Academy: Opening Session (HJN, 2018)
Facilitated by Tami Taught SERO Project IOWA With Melissa Williams Director of the Native American Indian Affairs and Commission INDIANA Carrie Foote HIV Modernization Movement INDIANA Mark Hughes HIV Modernization Movement INDIANA Sean Strub SERO Project PENNSYLVANIA Naina Khanna Positive Women’s Network – USA CALIFORNIA Waheedah Shabazz-El Positive Women’s Network – USA PENNSYLVANIA Arneta Rogers Positive Women’s Network – USA CALIFORNIA Stacy Jennings BULI participant SOUTH CAROLINA Cindy Stine SERO Project PENNSYLVANIA Robert Suttle SERO Project NEW YORK Edwin J Bernard HIV Justice Network UK Ken Pinkela SERO Project NEW YORK
Paul Kidd ASHM 2018 Lecture: HIV, Consent and the Criminal Law (Australia, 2018)
Synopsis
What is the role of the criminal law in relation to HIV medicine? Medical practitioners and other health care workers provide testing, diagnosis, counsel and care – but the use of the criminal law to prosecute people with HIV means health professionals may also find themselves entangled in a criminal investigation. What should we tell patients about their rights and responsibilities when it comes to HIV transmission or exposure? Taking medical and legal notions of consent as its starting point, this presentation will explore the complex and problematic impacts of HIV criminalisation on medical practice and the lives of people living with HIV, discuss the unrealised potential for the criminal law to be a healing process, and provide some guidance for practitioners who need to balance their roles as health providers with the legalities of HIV transmission and exposure.
Biography
Paul Kidd is an activist, writer and commentator with a particular interest in LGBTI law reform and legal issues affecting people living with blood-borne viruses. He was the founding chair of the Victorian HIV Legal Working Group, is a past President of Living Positive Victoria, has served on the boards of the Victorian AIDS Council, Hepatitis Victoria and the Equality Project, and is a member of the Victorian Government LGBTI Justice Working Group. He holds an honours degree in law from La Trobe Law School and is currently a trainee lawyer with Fitzroy Legal Service. Paul is currently a Supervisory Board member of the HIV Justice Network.
Canada: Recent case in British Columbia demonstrates the "cycle of fear, stigma and misinformation surrounding HIV"
Misinformation is the real culprit in British Columbia HIV case
Police and media left out key details of HIV non-disclosure charges – By Niko Bell
The case of Brian Carlisle shows that when it comes to HIV, what you don’t know can hurt you.
Last summer, Mission RCMP reported that Carlisle, a 47-year-old marijuana activist, had been charged with three counts of aggravated sexual assault for not disclosing to his sexual partners that he has HIV. The RCMP posted Carlisle’s name and photo, asking for any other partners who might have been exposed to come forward.
At the time, the RCMP said that while they would not normally publish private medical information, “the public interest clearly outweighs the invasion of Mr Carlisle’s privacy.”
Xtra does not usually publish the names of people charged with HIV non-disclosure, but Carlisle has given permission to Xtra to publish his name and HIV status.
In the following months, three charges of aggravated sexual assault against Carlisle swelled into 12.
But the RCMP failed to mention a crucial fact: Carlisle couldn’t transmit the virus to anyone.
After studying thousands of couples over decades of research, HIV scientists around the world have reached the consensus that people with HIV who regularly take medication and achieve a suppressed viral load cannot transmit the virus through sexual contact. Like most HIV patients in British Columbia, Carlisle’s viral load was suppressed, so none of the women he had sex with were in any danger of contracting the virus.
Months after publicly disclosing his HIV status, Crown prosecutors stayed all charges against Carlisle. But it became stunningly clear that not only had the police not fully informed the public that Carlisle was uninfectious, they also hadn’t properly informed Carlisle’s alleged victims.
One woman who had sex with Carlisle told the CBC anonymously about going through PTSD, anxiety and depression, losing her job and going bankrupt because she thought she might have HIV.
Not only did the woman mistakenly think she could have contracted HIV, she also said she thought she still might become infected. Nine months after charges were laid against Carlisle, she told the CBC she still had to “wait one more year to know if I have HIV or not,” and that she was still taking HIV tests every three months to ensure the virus did not appear. She said she still avoids sexual relationships out of fear of having to disclose that she might have HIV.
This understanding of how HIV testing works is catastrophically wrong. Modern HIV testing technology, like that used by the BC Centre for Disease Control, catches 99 percent of new HIV infections only six weeks after a new infection. If even that window is too large, new technologies like RNA amplification, also used in BC, can cut the time down to only two weeks.
Even if Carlisle’s viral load had been high enough to transmit the virus, which it was not, the women he had sex with could have been given a clear bill of health only days after the RCMP knocked on their doors.
The CBC, however, did not correct the woman’s misinformation, and reported as fact that the women involved would have to undergo annual testing to make sure they do not have HIV.
Mission RCMP would not confirm at what point they discovered that Carlisle’s viral load was suppressed, or when they informed the women involved, because they say the investigation into Carlisle is still open. It’s also not clear who told the women they might be infected, or that they required yearly HIV testing.
Regardless what you think of Carlisle’s choice not to inform his sexual partners that he had HIV, and regardless whether you care about the publication of his name and HIV positive status, much of the psychological harm suffered by the women in Carlisle’s case was for nothing. Accurate medical information might have saved them months or years of anxiety, fear and isolation.
Carlisle’s case is an example of what many HIV experts say is a cycle of fear, stigma and misinformation surrounding HIV, propelled by police and prosecutors’ use of the criminal law against people who are HIV positive. Criminal prosecutions, experts say, make people less likely to seek medical help or get tested, and can increase the likelihood of new infections. One study found thathalf of the targets of HIV non-disclosure prosecutions are Black men, and nearly 40 per cent are men with male partners.
In December, a federal government report recommended that prosecutors should move away from the “blunt instrument” of the criminal law to handle HIV non-disclosure cases, and the government of Ontario announced it would stop prosecuting cases involving people with low viral loads. BC’s attorney general said in December he would also reconsider the province’s policy, but recent updates to the Crown counsel policy manual do not rule out prosecuting people whose viral load makes the virus intransmissible.
Regardless of the law, the least that the police and journalists can do is be honest and accurate about the actual risks involved in HIV cases. Carlisle’s case shows just how devastating ignorance can be.
The full ruling is not yet available, but according to a news story published yesterday in 24 Horas.
…it was pointed out that the criminal offense is “highly inaccurate” because it does not establish what or what is a serious illness, besides it is not possible to verify the fraud in the transmission [and] that although the measure pursued the legitimate aim of protecting the right to health, especially for women and girls, the measure did not exceed the analysis of need because it was not ideal and optimal for the protection of that purpose, especially as [Veracruz] already criminalised the ‘willful putting at risk of contagion of serious illnesses’…
The Minister President of the Court, Luis María Aguilar Morales, took up the recommendations of the Joint United Nations Program on HIV / AIDS and the Oslo Declaration on HIV Criminalisation, regarding the criminalization of HIV, and argued that this article left to the will of the investigating authority to decide which diseases will be considered as serious and which will not, going against the principle of legality, which implies that the crimes cannot be indeterminate or ambiguous.
In this case, the President said, the article did not establish whether STIs are only those considered serious or any, regardless of their severity. In turn, the justices determined that the resolution has a retroactive effect, that is, that those persons tried under the offense established by this article, the resolutions are invalidated.
Background
On August 4, 2015, the Congress of the State of Veracruz approved an amendment to Article 158 of the Criminal Code in order to add the term Sexually Transmitted Infections, which included HIV and HPV.
It provided for a penalty ranging from 6 months to 5 years in prison and a fine of up to 50 days of salary for anyone who “willfully” infects another person with a disease via sexual transmission.
The amendment, proposed by the deputy Mónica Robles Barajas of the Green Ecologist Party of Mexico, said the legislation was aimed at protecting women who can be infected by their husbands. “It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.
On February 16, 2016, the National Human Rights Commission responded to the request of the Multisectoral Group on HIV / AIDS and STIs of the state of Veracruz and other civil society organizations, and filed an action of unconstitutionality against the reform in the Supreme Court of Justice of the Nation, which it said does not fulfill its objective of preventing the transmission of sexual infections to women and girls, but rather creates discrimination of people living with HIV and other STIs.
In October 2016, following a press conference at the National Commission on Human Rights (pictured above) that generated a great deal of media coverage, including a TV report, HIV JUSTICE WORLDWIDE delivered a letter to the Mexican Supreme Court highlighting that a law such as that of Veracruz does not protect women against HIV but rather increases their risk and places women living with HIV, especially those in positions vulnerable and abusive relationships, at disproportionate risk of both proseuction and violence.
We applaud the declaration of the Supreme Court of Justice of the Nation, which gives us the reason for the unconstitutionality request, shared with the National Commission of Human Rights; For this reason, we suggest to the deputies of the Congresses of the State that before legislating, they should be trained in the subject and that they do not forget that their obligation is to defend Human Rights, not to violate them.
Finally, the Mexican Network against the Criminalization of HIV recognizes that there are still many ways to go and many battles to fight, but we can not stop celebrating this important achievement.
Edwin Bernard (HIV JUSTICE WORLDWIDE) and Patricia Ponce (Grupo Multisectorial Veracruz) presenting the letter to Supreme Court of the Nation, Mexico City.
Read the English text of the HIV JUSTICE WORLWIDE amicus letter below.
HIV JUSTICE WORLDWIDE
This is a letter of support from HIV JUSTICE WORLDWIDE[1] to Grupo Multi VIH de Veracruz / National Commission of Human Rightswho are challenging Article 158 of Penal Code of the Free and Independent State of Veracruz that criminalises ‘intentional’ exposure to sexually transmitted infections or other serious diseases, on the grounds that this law violates a number of fundamental rights: equality before the law; personal freedom; and non-discrimination.
As a coalition of organisations working to end the overly broad use of criminal laws against people living with HIV, we respectfully share Grupo Multi VIH de Veracruz’s concerns around Article 158 which potentially stigmatises people with sexually transmitted diseases and criminalises ‘intentional’ exposure to sexually transmitted infections (potentially including HIV) or other serious diseases.
All legal and policy responses to HIV (and other STIs) should be based on the best available evidence, the objectives of HIV prevention, care, treatment and support, and respect for human rights. There is no evidence that criminalising HIV ‘exposure’ has HIV prevention benefits. However, there are serious concerns that the trend towards criminalisation is causing considerable harm.
Numerous human rights and public health concerns associated with the criminalisation of HIV non-disclosure and/or potential or perceived exposure and/or transmission have led the Joint United Nations Programme on HIV/ AIDS (UNAIDS) and the United Nations Development Programme (UNDP),[2] the UN Special Rapporteur on the right to health,[3] the Global Commission on HIV and the Law[4] and the the World Health Organization[5], to urge governments to limit the use of the criminal law to extremely rare cases of intentional transmission of HIV (i.e., where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it). They have also recommended that prosecutions [for intentional transmission] “be pursued with care and require a high standard of evidence and proof.” [6]
In 2013, UNAIDS produced a comprehensive Guidance Note to assist lawmakers understand critical legal, scientific and medical issues relating to the use of the law in this way.[7] In particular, UNAIDS guidance stipulates that:
“[I]ntent to transmit HIV cannot be presumed or solely derived from knowledge of positive HIV status and/or non-disclosure of that status.
Intent to transmit HIV cannot be presumed or solely derived from engaging in unprotected sex, having a baby without taking steps to prevent mother-to-child transmission of HIV, or by sharing drug injection equipment.
Proof of intent to transmit HIV in the context of HIV non-disclosure, exposure or transmission should at least involve (i) knowledge of positive HIV status, (ii) deliberate action that poses a significant risk of transmission, and (iii) proof that the action is done for the purpose of infecting someone else.
Active deception regarding positive HIV-status can be considered an element in establishing intent to transmit HIV, but it should not be dispositive on the issue. The context and circumstances in which the alleged deception occurred—including the mental state of the person living with HIV and the reasons for the alleged deception— should be taken into consideration when determining whether intent to transmit HIV has been proven to the required criminal law standard.”
Moreover, where criminal liability is extended to cases that do not involve actual transmission of HIV (contrary to the position urged by UNAIDS and other experts), such liability should, at the very bare minimum, be limited to acts involving a “significant risk” of HIV transmission. In particular, UNAIDS guidance contains explicit recommendations against prosecutions in cases where a condom was used, where other forms of safer sex were practiced (including oral sex and non-penetrative sex), or where the person living with HIV was on effective HIV treatment or had a low viral load. Being under treatment or using other forms of protections not only show an absence of malicious intent but also dramatically reduces the risks of transmission to a level close to zero. Indeed, a person under effective antiretroviral therapy poses – at most – a negligible risk of transmission[8] and is therefore no different from someone who is HIV-negative.
Moreover, there is growing body of evidence[9] that such laws that actually or effective criminalise HIV non-disclosure, potential or perceived exposure, or transmission, negatively impact the human rights of people living with HIV due to:
selective and/or arbitrary investigations/prosecutions that has a disproportionate impact on racial and sexual minorities, and on women.
confusion and fear over obligations under the law;
the use of threats of allegations triggering prosecution as a means of abuse or retaliation against a current or former partner;
improper and insensitive police investigations that can result in inappropriate disclosure, leading to high levels of distress and in some instances, to loss of employment and housing, social ostracism, deportation (and hence also possibly loss of access to adequate medical care in some instances) for migrants living with HIV in some cases;
limited access to justice, including as a result of inadequately informed and competent legal representation;
sentencing and penalties that are often vastly disproportionate to any potential or realised harm, including lengthy terms of imprisonment, lifetime or years-long designation as a sex offender (with all the negative consequences for employment, housing, social stigma, etc.);
stigmatising media reporting, including names, addresses and photographs of people with HIV, including those not yet found guilty of any crime but merely subject to allegations.
In addition, there is no evidence that criminalising HIV (or other sexually transmitted infections) help protect women and girls from infections.
Women are often the first in a relationship to know their HIV status due to routine HIV testing during pregnancy, and are less likely to be able to safely disclose their HIV-positive status to their partner as a result of inequality in power relations, economic dependency, and high levels of gender-based violence within relationships.[10]
Such a law does nothing to protect women from the coercion or violence that effectively increases the risk of HIV transmission. On the contrary, such laws place women living with HIV, especially those in vulnerable positions and abusive relationships, at increased risks of both prosecution and violence.
Some evidence suggests that fear of prosecution may deter people, especially those from communities highly vulnerable to acquiring HIV, from getting tested and knowing their status, because many laws only apply for those who are aware of their positive HIV status.[11] HIV criminalisation can also deter access to care and treatment, undermining counselling and the relationship between people living with HIV and healthcare professionals because medical records can be used as evidence in court.[12]
Finally, there is evidence[13] of an additional negative public health impact of such laws in terms of:
increasing HIV-related stigma, which has an adverse effect on a person’s willingness to learn about, or discuss, HIV; and
undermining the importance of personal knowledge and responsibility (correlative to degree of sexual autonomy) as a key component of an HIV prevention package, when instead prevention of HIV within a consensual sexual relationship is – and should be perceived as – a shared responsibility.
We hope that the Mexico Supreme Court of Justice takes our concerns and all of this evidence into account when considering the Constitutional Challenge.
Yours faithfully,
Edwin J Bernard, Global Co-ordinator, HIV Justice Network
on behalf of all HIV JUSTICE WORLDWIDE partners: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO).
[1] HIV JUSTICE WORLDWIDE is an initiative made up of global, regional, and national civil society organisations working together to end overly broad HIV criminalisation. The founding partners are: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO). The initiative is also supported by Amnesty International, the International HIV/AIDS Alliance, UNAIDS and UNDP.
[2] UNAIDS. Policy Brief: Criminalisation of HIV Transmission, August 2008; UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.
[3] Anand Grover. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, June 2010.
[4] Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.
[5] WHO. Sexual health, human rights and the law. June 2015.
[6] Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.
[7] UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.
[8] A.J. Rodger et al., “Sexual activity without condoms and risk of HIV transmission in serodifferent couples when the HIV-positive partner is using suppressive antiretroviral therapy,” JAMA 316, 2 (12 July 2016): pp. 171–181.
[10] Athena Network. 10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women. 2009.
[11] O’Byrne P et al. HIV criminal prosecutions and public health: an examination of the empirical research. Med Humanities 2013;39:85-90 doi:10.1136/medhum-2013-010366
You can select your preferred language from the 'Select Language' menu at the top of the page.
Continue
We use cookies to ensure that we give you the best experience on our website. By continuing to use our site, you are agreeing to our use of cookies. You can change your cookie settings at any time if you want. Find out more in our Privacy & Cookie Policy.
