Canada: Two staff members of the Canadian HIV/AIDS Legal Network discuss how the 'Undetectable = Untransmittable' campaign might best be understood to impact HIV criminalisation advocacy

U=U and the overly-broad criminalization of HIV nondisclosure

Published on CATIE’s blog on 06/06/2017

By Nicholas Caivano and Sandra Ka Hon Chu

People living with HIV in Canada have been charged with some of the most serious offences in the Criminal Code, even in cases of consensual sex where there was negligible or no risk of HIV transmission, no actual transmission and no intent to transmit.

The Undetectable=Untransmittable (“U=U”) campaign is based on scientific research, including the ground-breaking PARTNER study, establishing that when a person living with HIV on treatment maintains an undetectable viral load for at least six months, the risk of transmitting the virus through sex is effectively non-existent. As advocates for persons living with HIV await action from federal, provincial and territorial governments to address the overly-broad criminalization of HIV non-disclosure, how might the U=U campaign and the results of the PARTNER study impact ongoing prosecutions under the current state of the law?

Canada has the dubious distinction of being a world “leader,” after Russia and the United States, in prosecuting people living with HIV. In 1998, the Supreme Court of Canada (SCC), in R. v. Cuerrier, decided that people living with HIV have a legal duty to disclose their HIV-positive status to sexual partners before having sex that poses a “significant risk” of HIV transmission.

In 2012, in R. v. Mabior, the SCC ruled that people living with HIV have a legal duty to disclose before having sex that poses a “realistic possibility of HIV transmission,” which the Crown must prove. Commenting specifically in the context of a case involving penile-vaginal sex, the Court stated that “as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used.”

In Canada, people who face criminal charges related to HIV non-disclosure are typically charged with aggravated sexual assault, a criminal offence usually reserved for the most violent rape, on the theory that the absence of disclosure renders a partner’s consent to sex invalid. Despite the requirement of a “realistic possibility” of transmission, charges are being brought, even when people living with HIV engage in conduct that, based on medical evidence, poses a negligible possibility of transmission.

As U=U makes clear, the available information about HIV transmission has changed dramatically since the SCC’s decision in 1998. The results of the PARTNER study add to the mounting pile of evidence available to assist courts in making sure the law is consistent with science and with human rights.

Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

Nicholas Caivano is a lawyer and Policy Analyst at the Canadian HIV/AIDS Legal Network, where he works on human rights issues related to access to harm reduction services and access to medicines, and leads the work on law reform possibilities for HIV criminalization in Canada.

Sandra Ka Hon Chu is the Director of Research and Advocacy at the Canadian HIV/AIDS Legal Network, where she works on HIV-related human rights issues concerning prisons, harm reduction, sex work, women, and immigration.

US: Rolling Stone magazine covers HIV criminalisation and life as a person living with HIV in the US armed forces

What It’s Like to Be HIV Positive in the Military

Soldiers can be prosecuted for having sex, latest medications aren’t widely available – are the armed forces living in the 1980s when it comes to AIDS?

There’s not much to see in Otisville, New York. The town, with a population of just over 1,000 people, looks like an old mining village with white-painted ranch homes tucked behind the terrain’s rolling hills. The town is on the tip of Orange County, about 60 miles northwest of New York City; turn left down I-209 and you’ll pull into New Jersey, turn right and you’re in Pennsylvania.

For Kenneth Pinkela, Otisville dates back four generations with his family. The old Railroad Hotel and Bar off Main Street – one of the town’s three major roads – is the one his grandfather owned.

“Not a lot to look at, but it’s where I was raised. It’s home,” says Pinkela, driving his Ford pickup through the winding streets.

For Pinkela, Otisville is bittersweet. At 50 years old, the former Army lieutenant colonel, who still holds the shape of a weightlifter, is stuck there. He was forced to move back into his parent’s home three years ago after a military court martial had found him guilty of aggravated assault and battery back in 2012.

But Pinkela never bruised up anyone. Instead, he was tried and charged for exposing a younger lieutenant to HIV, though there was no proof of transmission. Pinkela has been HIV positive since 2007 when he was diagnosed right before deployment to Iraq during the surge.

President Jimmy Carter denounced Pinkela’s trial, and advocates argue it was one of the last Don’t Ask Don’t Tell cases the military tried and won. (Pinkela is also openly gay.) He served eight months in prison, lost his home and was dishonorably discharged from the Army.

Otisville was the only place for Pinkela to retreat to – specifically, back to his mother’s house.

Since being home, things have only gotten worse for Pinkela. His relationship with his mother is strained, he hasn’t had sex for years and doesn’t feel safe in public places.

“The post-traumatic stress I suffer now is worse than what I actually experienced in battle,” he says, pointing out a gunshot wound to his face.

Now, with a felony assault charge, Pinkela is having a hard time finding work even at a hardware store. “I was good at what I did. I loved my job. Now I can’t even get a job.”

Pinkela’s case is not unique. Other HIV positive service members interviewed say that serving their country while fighting for access to HIV care or preventative treatments is an uphill battle rife with bureaucracy, old science and misnomers within the Department of Defense on how HIV is transmitted. Much of the problem has to do with education, but both LGBTQ and HIV advocates say the issue is framed within the military’s staunch conservatism around sexual activity – particularly when it comes to gay sex.

The military isn’t alone in their policies; state laws also give prosecutors authority to charge those who have HIV with felony assault, battery and in some cases rape for having unprotected sex. As a result, gay men are facing what they say is an ethos of discrimination by the military against those who have HIV, including barring people from entering the services and hampering deployment to combat zones.

“It’s not a death disease anymore.”

Nationally, HIV transmission rates have gone down as access to medication and education have increased. But since tracking HIV within the armed forces, positive tests have “trended upwards since 2011,” according to the Defense Health Agency’s Medical Surveillance Monthly Report published in 2015. The highest prevalence of HIV is among Army and Navy men, according to the report.

In 1986, roughly five years after the HIV and AIDS epidemic began, the military began testing for HIV during enlistment, and barred anyone who tested positive. By the time the AIDS crisis began to lessen in the mid-1990s, the Army and Navy started testing more regularly. Now, service members are tested every two years, or before deployment.

Medical advocates say that the current two-year testing policy is partially to blame for the increase by creating a false sense of security against sexually transmitted diseases. The Centers for Disease Control suggest testing for HIV every three months for people who are most at risk of getting the virus, such as gay men or black men who have sex with men.

“The military, depending on how you look at it, could be seen as high risk for contracting HIV,” says Matt Rose, policy and advocacy manager with the National Minority AIDS Council in Washington D.C. “The military likes to treat every service member the same, but it makes testing for HIV inefficient.”

Former Cpt. Josh Seefried, the founder of the LGBTQ military group OutServe, said the group identified HIV as a problem within the armed forces nearly a decade ago after anonymously polling members.

“People have this mindset that since you’re tested and you’re in the military, it must be OK to have unprotected sex,” he says. “That obviously leads to more infection rates.”

Such was the case for Brian Ledford, a former Marine who tested positive right before his deployment out of San Diego. He told Rolling Stone he never got tested consistently because of the routine tests offered by the Navy. “I was dumb and should’ve known better, but I just thought, you know, I’m already getting tested so it’ll be fine.”

But a larger problem for the military is the number of civilians who try to enlist and test positive. The Defense Health Agency last year said there was a 26 percent increase of HIV positive civilians trying to sign up for the service.

All of those people, per military policy, were denied enlistment.

A Department of Defense spokesperson told Rolling Stone that the military denies HIV positive enlistees because the need to complete training and serve in the forces “without aggravation of existing medical conditions.”

But gay military groups say the policy is simply thinly-veiled discrimination.

“This policy, just like every other policy that was put in place preventing LGBTQ people from serving, is discriminatory and segments out a finite group of people,” says Matt Thorn, the current executive director of OutServe-SLDN. “Gen. Mattis during his confirmation said he wanted the best of the best to serve. If someone wants to serve their country they should be allowed to serve their country.”

The U.S. is one of the few Western nations left that have a ban on HIV positive enlistees. In Israel, where service is compulsory, their ban was lifted in 2015. In a press conference, Col. Moshe Pinkert of the Israeli Defense Forces said that “medical advancement in the past few years has made it possible for [those tested positive] to serve in the army without risking themselves or their surroundings.”

And as more countries begin to change their attitudes toward HIV and embrace a more inclusive military policy, there is hope that the U.S. might follow suit.

“Lifting the ban on transgender service members and Don’t Ask Don’t Tell was because a lot of other countries had lifted those bans, as well,” says Thorn. “In general, we don’t have a lot of good education awareness within the military on being HIV positive. People are looking back and they’re reflecting back on those initial horrors. But the truth of the matter is that it’s not a death disease anymore.”

Stuck in the 1980s

In July 2007, Pinkela was just about to be deployed out of Fort Hood when he was brought into an office; he was then told the news about his HIV status.

After the shock set in, he returned back to the D.C. area where he was required to sign what is known in the military as a “Safe Sex Order.” The order requires service members to follow strict guidelines on how they approach contact with others due to their diagnosis. If violated, soldiers can face prosecution or discharge.

“That piece of paper was a threat,” says Pinkela. “I couldn’t believe it was something that we did. Even to this day I look back on it and can’t believe that someone thought the order was okay.”

The Safe Sex Orders differ slightly between the military branches, but some of the details are troubling to medical professionals who say it appears as though the military is stuck in the 1980s.

For example, guidelines in the Air Force and Army tell soldiers to keep from sharing toothbrushes or razors. But the science and medical communities have known for decades that HIV can’t survive outside of the human body and needs a direct route to the bloodstream – something razors and toothbrushes can’t provide.

The Navy and Marine guidelines also tell service members to prevent pregnancy, as transmission of HIV between the mother and child may occur. But transmission between mother and child has become exceedingly rare.

“It’s your right to procreate,” says Catherine Hanssens, executive director of the HIV Law and Policy Center. “To effectively say to someone that because you’re HIV positive, even if you inform your partner, you shouldn’t conceive a child raises constitutional issues.”

Since 2012, HIV transmission has had a dramatic turnaround – partially due to preventative treatments that make the virus so hard to contract.

When someone is on HIV medication, they can reach an “undetectable” level of virus in their blood. At that point, transmission of HIV without a condom is nearly impossible, according to studies conducted in 2014 and released last year.

Rolling Stone reached out to the Department of Defense to specify why, given the medical advancement and low transmission rate, Safe Sex Orders were still being issued in their current format. The department defended the orders, saying “It is true that the risk is negligible if… the HIV-infected partner has an undetectable HIV viral load. However, it cannot be said that the risk is truly zero percent.”

If a service member breaks any of these rules, the military can charge them under the Uniform Code of Military Justice with assault, battery, rape or conduct unbecoming of an officer or gentleman.

Though department officials told Rolling Stone that “the Army does not use the [policy] to support adverse action punishable under UCMJ,” Hanssens’ organization currently represents service members who are facing charges as a result of not following their Safe Sex Order.

But military advocates – and even their staunch opponents – have said the U.S. military is just falling in line with other states throughout the country that criminalize HIV transmission and exposure. There are currently 32 states that have laws on the books related to HIV.

“Safe Sex Orders are unfortunately consistent with some laws enacted within certain states,” says Jonathon Rendina, an Assistant Professor at Hunter College at The City University of New York’s Center for HIV and Education Studies and Training. “What the military is doing is no different that what many civilian lawmakers are doing.”

In 2011, California Rep. Barbara Lee introduced a bill that would end HIV criminalization nationwide, though it failed to pass. In 2013, she helped push a line in the National Defense Authorization Act that forced the Department of Defense to review its HIV policies; though, only the Navy made changes to their Safe Sex Order.

“Too often, our brave service members are dismissed – or even prosecuted – because of their status,” Lee tells Rolling Stone in an email. “These shameful policies are based in fear and discrimination, not science or public health.”

Such was the case for Pinkela, who feels that the military has been using HIV as a reason to prosecute and kick out gay men since the legislative repeal of Don’t Ask Don’t Tell in 2010.

“I could not have sex. And even if I had sex and I told somebody, someone in the military could still prosecute me. They have this little piece of paper that lets some bigot and someone who doesn’t understand us, slam us and put us in jail,” he says.

And he’s not alone. Seefried, the retired Air Force captain, says he advises his gay friends – he calls them “brothers” – not to join the military.

“Right after Don’t Ask Don’t Tell was repealed, I came out and I said that gays should join to help change the culture,” Seefried says. “Now, I tell them not to not sign up… I just think that policies are very, very bad and unsafe for gays in the military right now.”

Quality care, for some

Travis Hernandez, a former sergeant in the Army, has been on the drug Truvada for just under two years now. He started using the the once-a-day blue pill while stationed at Ft. Bragg after he learned from a hook up that the drug could prevent HIV transmission by nearly 100 percent.

“A guy I was in the Army with and having sex with told me about it, and I was sexually active so it made sense for me to try it,” Hernandez says, adding how his experience getting the drug through the Army was very positive. “The doctors were really open talking about safe sex and everyone was very nice. I didn’t have any issues getting the drug.”

Hernandez finished his Army service last year and continues to receive Truvada through his veteran health benefits. But his story is not similar to everyone else’s.

The military provides access to Truvada through it’s healthcare provider TriCare, but only for certain individuals. Each military branch makes their own rules for who can get access.

Emails obtained by Rolling Stone between the National Minority AIDS Council and military health officials confirm that there are different protocols for prescribing Truvada between the service branches and its members without any specific reason.

“The military likes to set their own rules, even if it doesn’t always make sense,” says Rose, with the council. “The Army thinks they know what’s best for the Army, and Marines think they know what’s best for the Marines. But they all have different medical requirements that shouldn’t have any dissimilarities.”

In a statement, Military Health officials within the Department of Defense say they are conducting studies on the effectiveness of Truvada in certain situations, such as while on flight status or sea duty, and are also looking into barriers service members faced with access to care across the military branches. Among those barriers, Military Health noted that not every military hospital has infectious disease specialists who would prescribe the drug.

Truvada does not require a prescription from an infectious disease doctor, though. And the different policies, Seefried says, shows the lack of scientific competence within the Department of Defense and the policies they create.

“Navy Pilots, for example, can take Truvada while on the flight line, but Air Force pilots cannot while they are on the flight line,” says Seefried. “These military branches have different chains of command, so they have different policies that all agree on nothing. It’s just disjointed, and not grounded in science.”

Once a prison, now a home

The charges brought against Pinkela are confusing – even to lawyers who have reviewed his case. Hanssens, with the HIV Law and Policy Center, was one of them.

“What happened to him makes no sense,” she said.

Typically, when a prosecutor files charges, certain requirements have to be met. For assault and battery, according to the UCMJ, one of the primary actions has to be an unwanted physical and violent encounter or an action that is likely to cause death. There are no statutes that label the virus as a determinant for the charge.

Despite there not being an authorization on the books, scores of HIV positive service members like Pinkela have been brought before a court martial with felony assault and battery charges.

Pinkela’s case had gone through six prosecutors who thought the case was too weak before one finally picked it up, according to Pinkela.

And Pinkela’s court martial testimonies are even more bizarre: the soldier never said Pinkela and he had sex, nor did he ever say that Pinkela was the one who transmitted the virus to him. Instead, the evidence came down to an anal douche that may have been used and could’ve exposed the young soldier to HIV.

Not possible, says Rendina, the investigator from the City University of New York.

“Like most viruses, HIV is destroyed almost immediately upon contact with the open air,” he said. “The routes of transmission [listed in Pinkela’s case] have an extremely low probability of spreading infection due to the multiple defenses along the route from one body to the next – this is made even more true if the HIV-positive individual is also undetectable.”

When asked about the case, the Army only confirmed Pinkela’s charges but wouldn’t comment on the nature of the case or how HIV is prosecuted, generally, within the armed forces.

Pinkela has run out of appeals and is forced to now move forward with what little means he has. But in true spirit of service, he has found a new way to give back to the small town that he’s been forced to live in. In May, Pinkela plans to announce his plans to run for office in Otisville.

“I still believe in this country. And I still believe in the service, no matter that it’s the same system that allowed for this to happen to me,” he said.

In an effort to move past the experience, Pinkela and a friend went to last year’s Burning Man – the art and music festival held in Death Valley, California. There, when the fires began burning on the last day, he wrapped up his Army uniform, tied it off and threw it in a fire. He said it was one of the most cathartic moments he’s felt since being back in the Army.

Published in Rolling Stones on May 20, 2017

US: Law review article examines Louisiana's HIV-specific law and its discriminatory nature

This law review article summarizes the science of HIV and the historical background of HIV and HIV-related stigmas in the United States (“U.S.”). It delves into statistics about HIV diagnoses in the U.S. and Louisiana, and the disproportionate impact that HIV has on southern communities and communities of color. It then examines Louisiana’s HIV-specific law, introduced in 1987 and not updated since 1993, identifies the ineffectiveness and discriminatory nature of the law, how it is contrary to public health efforts, and calls for science and logic based revisions to it.  It also reviews several Louisiana HIV criminal cases.  Finally, the article acknowledges that solely changing the HIV criminal statute will not remove the stigma associated with HIV, and proposes mandatory public health training for law enforcement officers and prosecutors to combat implicit biases and HIV stigma.

The full article is availaible here

Norway: Activists concerned about latest proposals to change Norway's HIV law

Critical to changes in section 237 of the Criminal Code

Reidar Engesbak, April 26, 2017

(Google translation from http://blikk.no, original post below)

The government last week presented a proposal – Prop. 120 L (2016–2017) – for penalties on transmission of infection and endangered spread of infection.

The Ministry of Justice’s submitted to the Storting a proposal for amendments to section 237 of the Criminal Code, which mainly follows the recommendations of the statutory committee that were appointed on the basis of criticism of the current criminal law regulation.

The law committee resulted in the NOU “About Love and Cooling Tower – Criminal Justice in Major Infectious Diseases.”

“I am pleased that we now propose a regulatory framework that addresses the medical development,” said Per-Willy Amundsen, Deputy Minister of Justice, in a press release.

The proposal entails, among other things, clarification that criminal liability is not imposed when appropriate contingency measures have been observed. This includes, among other things, successful medical treatment of HIV infection. Emphasis has been placed on the fact that the knowledge base on the treatment of HIV infection has changed in recent years and that the infection risk from well-treated HIV-positive individuals must be considered minimal.

The government also proposes a change in the Criminal Procedure Act, which allows the police to routinely investigate the infectious status of persons suspected of rape or other serious sexual assault.

“The proposal means that we can be clarified faster than today if the victims have been exposed to a risk of infection. It is important for the government to strengthen the offender’s position in criminal matters, and this change will contribute to that, “Amundsen said in the press release.

Contrary to UNAIDS ‘recommendations

The user organization New Plus – Hivpositives National Association is not so excited. The proposals, according to New Plus’s view, involve a number of things that will worsen the legal situation of those living with HIV.

“What is positive with the bill is that it is suggested that you can not prosecute people who have been negligent and that it is now necessary to commit gross negligence in order to be prosecuted,” said Kim Fangen, Managing Director of New Plus.

New Plus nevertheless believes that the boundary is still unclear. “It is still not the case that actual transmission of infection will be required in order to be punished. Consequently, the provision will still violate UNAIDS ‘recommendations, which state that punishment can only be used where there is a person who is aware that he or she has HIV or with the knowledge and willingness to infect another and infection is actually transmitted.

A little impractical

The proposition is for people to be treated for successful treatment to be exempted from punishment. It’s a suggestion New Plus applaudes. “However, the proposal implies that one can only be exempted from punishment after successful treatment and has been with his partner for prior infection prevention guidance from healthcare professionals, as well as the consent of the partner after this. This scheme applies today only to persons living in marriage or marriage-like relationships. The Ministry therefore wishes to extend the personal circle that will be covered in principle, it will apply to all,” said Fangen to Blikk Nett.

New Plus believes the scheme is impractical. “We can hardly see for ourselves that you want to bring a man for two weeks to the GP to get such consent. It will soon become most relevant for those who have been together for so long that one will nevertheless be covered by today’s wording about marital-like relationships. In any event, this means that an obligation to inform sexual partners is forced for persons who are nevertheless not infectious. People who are on successful treatment will not be able to transfer infection to others, says Fangen, and refers to statements by Professor Jens Lundgren at Rigshospitalet in Denmark.

“When you know at the same time how little knowledge exists in the society about HIV, this means that you can quickly find yourself in a very vulnerable situation to those you want to have sex with, without even jeopardizing the other.

Increased penalty frame

The Ministry of Justice’s proposal also wishes to raise the penalty frame for gross negligence from 3 to 6 years through a new provision in the Act. “This is very serious because it sends a signal about the severity of these actions and could make it even more stigmatizing to live with HIV,” Kim Fangen points out.

“We know that most infections occur when the person who has the virus does not even know that they are infected. These penalties will continue to hit people who have, in their ignorance, exposed others to infectious persons and people who can not actually infect anyone, but because they have not been open about status and conducted infectious guidance can be punished nevertheless. This is believed to mean that fewer will be open about HIV status and that people living with HIV will feel further stigmatized, “said Kim Fangen to Blikk Nett.

“We therefore see no reason to cheer over this and will continue the fight to completely decriminalize HIV.

Kritisk til endringer i Straffeloven § 237

Regjeringen la forrige uke fram et forslag til straffebestemmelser om smitteoverføring og allmennfarlig smittespredning.

Justisdepartementets proposisjon (Prop.120L) til Stortinget et forslag til endringer i Straffelovens paragraf 237, som i hovedsak følger opp anbefalingene til lovutvalget som ble oppnevnt på bakgrunn av kritikk mot den gjeldende strafferettslige reguleringen.

Lovutvalget resulterte i NOU-en «Om kjærlighet og kjøletårn — Strafferettslige spørsmål ved alvorlige smittsomme sykdommer.»

– Jeg er fornøyd med at vi nå foreslår et regelverk som tar opp i seg den medisinske utviklingen, sa justis- og beredskapsminister Per-Willy Amundsen (FrP) i en pressemelding.

Forslaget innebærer blant annet en klargjøring av at straffeansvar ikke pådras når forsvarlige smitteverntiltak er iakttatt. Dette omfatter blant annet vellykket medisinsk behandling av hivsmitte. Det er lagt vekt på at kunnskapsgrunnlaget om behandling av hivsmitte har endret seg de siste årene, og at smitterisikoen fra velbehandlede hivpositive personer må anses som minimal.

Regjeringen foreslår også en endring i straffeprosessloven som åpner for at politiet rutinemessig kan undersøke smittestatusen til personer som er mistenkt for voldtekt eller andre alvorlige seksuelle overgrep.

– Forslaget innebærer at vi raskere enn i dag kan få avklart om fornærmede har blitt utsatt for smittefare. Det er viktig for regjeringen å styrke fornærmedes stilling i straffesaker, og denne endringen vil bidra til det, sa Amundsen i pressemeldingen.

Strider mot UNAIDS’ anbefalinger

Brukerorganisasjonen Nye Pluss – Hivpositives landsforening er ikke så begeistret. Forslagene innebærer etter Nye Pluss sitt syn en rekke ting som vil forverre den juridiske situasjonen for de som lever med hiv.

– Det som er positivt med proposisjonen, er at det foreslås at man ikke kan straffeforfølge personer som bare har vært uaktsomme, og at det skal nå kreves grov uaktsomhet for å kunne straffeforfølges, sier Kim Fangen, daglig leder i Nye Pluss.

Nye Pluss mener likevel at grensegangen fortsatt er uklar.

– Det er fortsatt ikke slik at faktisk smitteoverføring vil kreves for at man skal kunne straffes. Følgelig vil bestemmelsen fortsatt stride mot UNAIDS’ anbefalinger, som statuerer at straff bare kan brukes der det er snakk om at en person enten er klar over at hen har hiv, eller med viten og vilje går inn for å smitte en annen og smitte faktisk overføres.

Lite praktisk

Proposisjonen går inn for at personer på vellykket behandling skal fritas fra straff. Det er et forslag Nye Pluss applauderer.

– Forslaget innebærer dog at man bare kan fritas fra straff om man er på vellykket behandling og har vært med sin partner til forutgående smittevernveiledning hos helsepersonell, samt fått samtykke fra partneren etter dette. Denne ordningen gjelder i dag bare for personer som lever i ekteskap eller ekteskapslignende forhold. Departementet ønsker dermed å utvide personkretsen som vil omfattes til at den i prinsippet vil gjelde alle, sier Fangen til Blikk Nett.

Nye Pluss mener ordningen er lite praktisk.

– Vi kan vanskelig se for oss at man vil ta med seg en man har datet i to uker til fastlegen for å få et slikt samtykke. Det blir fort mest aktuelt for de som har vært sammen såpass lenge at man uansett vil dekkes av dagens ordlyd om ekteskapslignende forhold. Uansett betyr dette at man tvinger frem en informasjonsplikt overfor seksualpartnere for personer som uansett ikke er smittefarlige. Personer som er på vellykket behandling vil ikke være i stand til å overføre smitte til andre, sier Fangen og viser til uttalelser fra professor Jens Lundgren ved Rigshospitalet i Danmark.

– Når man samtidig vet hvor lite kunnskap som finnes i samfunnet om hiv, gjør dette at man fort setter seg i en veldig sårbar situasjon overfor de man vil ha sex med, uten at man selv utgjør noen fare for den andre.

Økt strafferamme

Justisdepartementets proposisjon ønsker i tillegg å heve strafferammen for grov uaktsomhet fra 3 til 6 år gjennom en ny bestemmelse i loven.

– Dette er svært alvorlig fordi det sender et signal om alvorlighetsgraden av disse handlingene og vil kunne gjøre det ytterligere stigmatiserende å leve med hiv, påpeker Kim Fangen.

– Vi vet at de fleste smitteoverføringer skjer der personen som har viruset ikke selv vet at hen er smittet. Disse straffebestemmelsene vil forsette å ramme personer som i sin uvitenhet har utsatt andre for smittefare og personer som i realiteten ikke kan smitte noen, men som fordi de ikke har vært åpne om status og gjennomført smitteveiledning vil kunne straffeforfølges likevel. Dette tror vi vil medføre at færre vil være åpne om hivstatus og at personer som lever med hiv vil føle seg ytterligere stigmatisert, sier Kim Fangen til Blikk Nett.

– Vi ser dermed ingen grunn til å juble over dette og vil fortsette kampen for å avkriminalisere hiv fullstendig.

UK: Whole genome sequencing shows potential as public health tool, but not yet able to definitively prove direction (or timing) in criminal cases

Potential for phylogenetic analysis to show direction of HIV transmission

24 April 2017. Simon Collins, HIV i-Base

Tentative results presented in a poster at BHIVA 2017 suggest that a new approach to phylogenetic testing might have the potential to show the direction of HIV infection between two individuals.

While the results are exciting from a scientific perspective, if the approach proves to be robust, this will raise many ethical and legal questions.

Until now, phylogenetic analysis, where sections of two viruses are compared for similarity, has been able to show similarity but crucially not direct infection (a third person could be involved) or direction of infection. Phylogenetic analysis is most useful for showing when transmissions are definitely not linked, when the two strains are unrelated. When linkage is shown, direction of infection cannot be inferred nor the possibility that both infections originated from intermediary partners.

The current study, presented as a poster by Kate El Bouzidi and colleagues from Brighton and Sussex University Hospitals Trust, used whole genome sequencing (WGS) to look at genetic diversity at each of the >9000 individual nucleotide sites in two linked viruses, with heterogeneous samples being interpreted as being the source virus for the sample which had homogeneity at the same nucleotide site.

WGS performed on 170 samples from a UK MSM cohort identified five linked pairs and these were compared to four control pairs where linkage was already established and direction inferred from clinical notes.

The direction of travel was able to be inferred using WGS for 3/4 control pairs, with the single indeterminate result linked to a sample that was taken so long after transmission took place that natural divergence was too great to determine direction.

WGS-inferred direction was consistent with clinical data for 2/5 case pairs. The lack of a signal in two further case pairs with indeterminate was able to be interpreted as not supportive direct transmission, but missing intermediary partners from whom samples were not available.

Finally, the case where WGS-inferred transmission did not match clinical route, was when the sample from the source partner was taken during primary infection (when HIV is likely to be homogenous at most points) several years before likely transmission to the second partner (whose sample was only taken during chronic infection (when heterogeneity is more likely).

This study is funded by both BHIVA and Public Health England as part of the COMPARE-HIV Study (Comparison of Molecular & Phylogenetic Approaches to Reconstruct an Epidemic of HIV), based at Brighton and Sussex University Hospitals NHS Trust.

Comment

The results are preliminary and clearly the timing of samples is likely to be important when interpreting the results from this approach.

WGS may improve our understanding of transmission networks at a population level but it cannot be used to confirm direct transmission at an individual level and sequence data should always be interpreted cautiously in conjunction with clinical information.

However, if the methodology is supported in larger analyses, the results will raise important ethical and legal concerns, especially in countries where HIV transmission is still criminalised.

Reference:

El Bouzidi K et al. Insights into the dynamics of HIV-1 transmission using whole genome deep sequencing. 23rd BHIVA, 4-7 April 2017, Liverpool. Poster abstract P31.

Canada: Alison Carter explores the negative consequences of HIV Criminalisation on women living with HIV

The Politics Of Sex For Women Living With HIV

“If I have sex, I could go to jail.”

This is the reality of life for women living with HIV in Canada.

It’s a story I heard a few weeks ago from an African woman who had recently immigrated to Vancouver and is now faced with the profoundly isolating experience of being a Black HIV-positive woman in Canadian society.

This may come as a surprise to anyone unfamiliar with HIV in Canada: Women (and men) who are living with HIV are at risk of facing a criminal charge of aggravated sexual assault for not disclosing their HIV status before engaging in consensual sex, unless they have a low HIV viral load and use a condom. Beyond serving jail time, those convicted must register as a sex offender, a title usually reserved for child molesters and rapists. “That follows you around forever,” says a woman who was herself imprisoned for HIV non-disclosure.

This woman, and many others, bravely spoke out about their experiences of being treated like a criminal for living with HIV at the annual Canadian Conference on HIV/AIDS Research, held in Montréal from April 6 to 9.

The conference included a special session on the criminalization of HIV non-disclosure, which covered a broad array of issues ranging from data on the total number of charges laid, to women’s personal testimonies of feeling ‘under surveillance’, to the latest research findings on how the law is understood and experienced by thousands of women living with HIV across Canada.

Saara Greene of McMaster University, Angela Kaida of Simon Fraser University, and Marvelous Muchenje of the Canadian Coalition to Reform HIV Criminalization co-hosted the event in partnership with HIV-positive women, which brought together dozens of community leaders, scientists, lawyers, and activists from around the country.

“Some women are suffering in silence and they don’t know what the law says,” said Muchenje.

“The law assumes that sex takes place between partners of equal power,” added Greene. “And it wholly ignores what causes women not to disclose their status, including widespread stigma and violence that are both systematically targeted at women living with this disease.”

The women who have participated in their research, which involved telling stories through participatory arts-based Body Mapping, say “disclosure is not always safe or positive for women’s health and safety.” And for many, the fear of being abused, rejected, or worse jailed, is a significant barrier to even thinking about the idea of getting involved with someone.

Eighteen women have been charged for HIV non-disclosure in Canada, many of whom come from marginalized backgrounds and are survivors of sexual violence.

“Beyond the number of prosecutions, however, is the threat of prosecution,” said Kaida. “And this threat compromises both women’s interactions with healthcare providers and their sexual health.”

Kaida analyzed survey data collected from over 1000 women living with HIV in Canada, and found that for most women (65 per cent), the law affects the amount and type of information they are willing to share with providers, particularly as it relates to their sexual lives.

Kaida also found that 51 per cent of women were not having sex and of these, 78 per cent were intentionally abstinent. Women’s reasons for intentional abstinence were diverse though many (33 per cent) worried about HIV criminalization and disclosing their status to sexual partners.

“Laws criminalizing HIV non-disclosure have been defended as a means of protecting the sexual well-being of women,” Kaida said. “However, our findings show women are protecting themselves from the law by intentionally abstaining from sex.”

It goes without saying that women living with HIV shouldn’t have to live in fear of having sex. Sex is a normal part of life. It feels good. It has health benefits. And it’s a human right, one that this law violates.

The law also ignores groundbreaking new science that shows a person with HIV who is on treatment with undetectable levels of the virus in their blood has zero chance of passing HIV to their sexual partners. Put simply, Undetectable=Untransmittable.

Wedged in between science, on the one hand, and society on the other, are decades of cultural discourses of risk, danger, and stigma.

Stigma is a dangerous construct. It deters people from accessing testing and treatment. It leads to anxiety, depression, isolation, and loneliness. And it creates a social and legal environment that fosters abuse, harassment, and discrimination against women living with the condition.

In the face of a mountain of evidence of medical advances and human rights violations, many people are calling (shouting, really) for policy markers in Canada to update the laws and de-criminalize HIV. Doing so would also help to de-stigmatize sex for women living with HIV.

“The discrimination I face because of I live with HIV is ridiculous,” says Peggy Frank, an openly positive woman and researcher. “It’s a small virus that has little to do with who we are. I am a human being and I have the rights that every other human being has, and that includes sex.”

Allison Carter is a feminist epidemiologist conducting sex-positive research with women living with HIV. She is working with women on building a new online resource, called Life and Love with HIV, dedicated to building conversation and community around sexuality and relationships for women and couples with HIV around the world. Sign up to be notified when the website launches.

Published on April 10, 2017 in the Huffington Post

 

[Update] India: Parliament passes landmark bill ensuring equal rights to people living with HIV and giving them the right not to disclose their status

Lok Sabha passes ‘historic’ bill ensuring equal rights to HIV-affected people

The Lok Sabha on Tuesday passed a crucial bill that ensures equal rights to the people affected by HIV and AIDS in terms of getting treatment, jobs or admissions to educational institutions.

Moving the Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) (Prevention and Control) Bill, 2017 for passage, health minister JP Nadda said the government stood for free treatment to HIV patients.

The Rajya Sabha had passed the bill last month.

The “historic” and “people centric” legislation will strengthen rights of people infected with HIV, Nadda said.

Various clauses pertaining to prohibition of discrimination against HIV-positive patients have been enlisted in the bill. “Whosoever does not adhere to the provisions of the bill, will be penalised. Civil and criminal proceedings will be launched against such persons”, Nadda said, adding that action would also be taken against those who attempted to block the implementation of the bill.

The legislation, he added, has provisions to safeguard the property rights of HIV positive people.

“Every HIV infected or affected person below the age of 18 years has the right to reside in a shared household and enjoy the facilities of the household”, Nadda said.

Further, the bill prohibits any individual from publishing information or advocating feelings of hatred against HIV positive persons and those living with them.

Nadda said the government will also promote research to check the spread of HIV virus and come out with aggressive strategies, especially in high risk areas.

Opposition members had several suggestions and observations during the Bill’s passage, TMC member Ratna De Nag regretted that stigma related to HIV remains intense . P Ravindra Babu (TDP) emphasized that the stigma associated with the disease could not be eradicated by laws alone. Varaprasad Rao (YSR Congress) pitched for insurance cover for the affected people with the premium being paid by the government.

Heena Gavit (BJP) said couples affected with HIV should be given the right to adopt children.

 Text of the full bill is available here

 

——————————————————————

The new HIV and AIDS Bill will work to reduce stigma and discrimination

By JP Nadda

Two decades ago India was considered a hotspot and emerging centre of the world’s HIV epidemic. Since then, India has made tremendous progress in controlling HIV. Through its continuing efforts including targeted programmes and support of affected communities, India has demonstrated that the course of an epidemic can be reversed by public education, mass awareness and wide scale availability of testing and treatment.

Today, approximately 21 lakh people are living with HIV, as per government estimates. The adult prevalence is in the range of 0.3%, of which around 40% are women. Despite this enormous progress and the availability of testing and treatment, stigma and discrimination against HIV affected individuals in India remains widespread.

India made some efforts at stigma reduction in the early part of the epidemic. Yet social attitudes do not transform easily. The HIV AIDS bill approved by the Cabinet and pending approval in Parliament is an important step in ensuring that the progress made against HIV is not halted and discrimination against HIV affected individuals is reduced.

How is this being done? It’s important to reflect on the many progressive aspects of the bill. To start with, numerous provisions of this bill ensure government accountability and commitment into providing HIV prevention, testing, treatment and care to those at risk. Why is this necessary? Because every government irrespective of political affiliations must commit to fighting HIV. For the first time, the bill brings together a human-rights perspective to public health, and makes antiretroviral treatment a right of HIV/AIDS patients. The central and state governments are duty bound to provide for treatment and also arrange for the management of risk reduction of vulnerable populations. This will ensure that in the future no Indian has to struggle for diagnosis or treatment.

Considering widespread stigma and the need for privacy, the bill also mandates that no HIV test, medical treatment, or research can be conducted on a person without their informed consent. This ensures that those affected by HIV have the right to privacy and confidentiality. The bill also mandates that no person can be compelled to disclose their HIV status except with informed consent, and if required by a court order.

The bill also addresses discrimination in everyday life through numerous provisions especially at the workplace and within communities. It prohibits discrimination against HIV positive persons and those affected in numerous aspects. These include the denial, termination, discontinuation or unfair treatment with regard to employment and in educational establishments, health care services, residing or renting property, standing for public or private office, and provision of insurance (unless based on actuarial studies). The bill also prohibits the requirement for HIV testing as a pre-requisite for obtaining employment or accessing health care or education.

The intention is to ensure that no HIV infected individual is the subject of discrimination and there is legal accountability and recourse for them. The bill also mandates the appointment of an ombudsman in every state to inquire into complaints related to the violation of the Act and the provision of health care services. This ombudsman will submit reports every six months stating the number and nature of complaints received and the actions taken on them.

Populations who are most vulnerable to HIV/AIDS are female sex workers (FSWs), men who have sex with men (MSMs), transgenders and intravenous drug-users. The bill seeks to protect these high-risk groups from discrimination, both through administration of treatment for their infections as well as improving their access to welfare schemes and services.

The bill also mandates that cases relating to HIV positive persons shall be disposed off by the court on a priority basis. If an HIV infected or affected person is a party in any legal proceeding, it shall be conducted so as to supress the identity of the person, and restrain any person from publishing information that discloses the identity of the applicant. Also when passing any order with regard to a maintenance application filed by an HIV infected or affected person, the court shall take into account the medical expenses incurred by the applicant.

While social change will take time and stigma will not end immediately, this bill is a step in the right direction. It is a much needed and long awaited measure that will work to reduce stigma and discrimination towards people living with HIV. It will also ensure enhanced access to and privacy for those seeking care.

The foundation of every significant legislation is that it must safeguard civil liberties. This is exactly what this bill intends to do. It intends to ensure that those living with HIV do so with dignity and respect enjoying all their rights as citizens.

In the long-term, our goal is an India where no new HIV infection occurs and where living with HIV is neither a matter of fear or of shame.

Originally published in Hindustan Times on 24 March 2017

India: HIV/AIDS (Prevention & Control) Bill strongly criticised for not guaranteeing universal access to HIV treatment

Delhi, Gaborone, New York – The International Treatment Preparedness Coalition (ITPC) and its global coalition partners are outraged following a decision by the Indian Parliament to absolve itself from responsibility of providing treatment for people living with HIV in India. The HIV/AIDS (Prevention & Control) Bill was passed in the upper house of the Indian Parliament yesterday, 21 March 2017. The Bill states that the government will provide treatment for people living with HIV ‘as far as possible’ (see full text below) absolving the government from its responsibility to protect the right to life.

“This is a step backwards for human rights, and a tremendous blow for all people living with HIV in India,” said Gregg Gonsalves, Chair of ITPC-Global. “It is extremely concerning that the India government has given itself this loophole at a time when the government program is in disarray, with the worst period of antiretroviral drug stock outs.”

Networks of people living with HIV and other civil society organizations lobbied Members of Parliament to amend the draft Bill that was first tabled in February 2014. In response to civil society concerns, senior Members of Parliament urged the Union Minister JP Nadda to make the amendment. HIV treatment activists were stunned when these parliamentarians withdrew their amendment at the last minute, thus giving way to the Bill passing into legislation.

“As the biggest supplier of generic medicines to the developing world, India could be the leading light in HIV treatment, an example to the rest of the world,” said Solange Baptiste, ITPC-Global’s Executive Director. “Instead this new Bill fails to enshrine the rights of its own people. I fear it’s an omen of things to come. We, HIV treatment activists, will be watching and monitoring to make sure the Indian government upholds its responsibility to all its citizens living with HIV.”

“Nothing in the world is more important than securing treatment for me, and my community of people living with HIV,” said Loon Gangte Regional Coordinator ITPC-South Asia. “I earnestly appeal to the government to delete the loophole ‘as far as possible’ and assure our right to life”.

Editor’s Note:

HIV/AIDS Bill Final Text

The provision for HIV treatment in Section 14 of the HIV/AIDS Bill, reads as follows:

1. The measures to be taken by the Central Government or State Government under section 13 shall include the measure for providing, as far as possible, Anti-Retroviral and Opportunistic Infection Management to people living with HIV or AIDS.

2. The Central Government shall issue necessary guidelines in respect of protocols for HIV and AIDS relating to Anti-Retroviral Therapy and Opportunistic Infection Management which shall be applicable to all persons and shall ensure their wide dissemination.

About International Treatment Preparedness Coalition

International Treatment Preparedness Coalition (ITPC) is a global coalition of HIV treatment activists formed in 2003 to respond to the needs of communities worldwide. The global network is driven by individual activists, peer support groups, grassroots networks, community-based organizations, and non-governmental organizations. Each of our partners share our values and vision and come together to address issues around access to treatment issues in their countries, regions and at the global level.

New Zealand: Ex-partner of the first person prosecuted for HIV transmission in New Zealand believes HIV prosecutions are harmful

HIV prosecutions are harmful, says victim

By Amelia Wade

A victim of the first person prosecuted for infecting others with HIV says she is against making criminals out of transmitters.

Marama Mullen believes it only pushes the issue further underground.

The Waikato woman was given HIV by Kenyan musician Peter Mwai who was jailed for seven years in 1994 for having unprotected sex with seven women and infecting two.

Just 22 years old at the time, Mullen said she couldn’t “really fathom” what the trial would mean.

“Quite a few times I wanted to stop and back out because of the lack of support for being the person who was doing it. There was a lot of media and a lot of people had differing views and opinions.

“But a lot has changed for me since then – I’ve actually become an advocate for not criminalising the spread of HIV because I truly believe it creates more stigma.”

She’s now spent more than a decade working with agencies for HIV aids as well as indigenous groups. She said the stigma of infection was especially harmful for Maori and Pasifika people.

“You’re disappointing your family double – it’s one thing if you’re gay but to add to that the stigma of being HIV positive is another.”

Mullen said it was common for people of Maori or Pasifika descent to go into denial about their condition and believes that may have been the case for Mikio Filitonga.

“When you tell someone you’re positive, it gives them the power to do what they want with that information.”

Mullen said she “felt for” Filitonga because if he was in denial, being publicly identified in a criminal trial as a HIV positive person was the “worst thing that could have happened to him”.

Usually when people didn’t disclose their status it was more to do with the fear of rejection rather than a criminal intent to infect, Mullen said.

She doesn’t think prosecutions are the best approach unless the person actively intended to infect someone.

Making someone a criminal as well as HIV positive only worsened the problem, she said.

Mullen has worked on a management plan – similar to one in Australia – which refers people suspected of infecting others to an agency.

It would to establish whether there are any mental health or cultural reasons behind their actions and whether a prosecution is necessary.

Mullen said it was “sitting on a bureaucrat’sdesk somewhere” yet to see the light of day.

Today’s medication is able to suppress the virus to the point it is undetectable and non transmittable so it was questionable as to whether someone even needed to disclose their status to partners.

Mullen said she believed if a person was dutifully taking their medication, they were taking enough precautions not to pass on HIV.

Within two months of taking the antiviral drugs, Mullen said her viral load – the amount of HIV in someone’s blood – dropped from 1000 which was “heading towards Aids” to it being undetectable.

She’s since been able to have two children – who are both HIV negative – and live a totally normal life.

Except for the stigma.

After being an outspoken advocate for acceptance, she’s considering moving from the Waikato to live incognito for the sake of her children.

Other parents have tried to get her 10- and 7-year-old kicked out of school, they’ve been bullied, had people refuse to go to their home and have been excluded from birthday parties – despite both being negative.

“The biggest message we want to get out there is that if we’re on medication we can’t infect people and we’re not transmittable.”

THE AIDS FOUNDATION AGREES

The New Zealand Aids Foundation said the broad application of criminal law to HIV transmission risks undermining public health and human rights.

Executive director Jason Myers said a prosecution should only happen if someone acted with the express intent to transmit the virus.

“Broad application of criminal law to the transmission of HIV has the potential to do significant damage to the public health and human rights based HIV response in New Zealand.

“It also increases the HIV stigma and discrimination experienced by people living with HIV, the vast majority of whom take care of themselves and their sexual partners.”

Myers said they knew the vast majority of people living with HIV who know their status act responsibly to take care of the health of both themselves and their sexual partners.

PREVIOUS HIV PROSECUTIONS:

1994 – In a highly publicised case, Kenyan musician Peter Mwai was the first person charged with infecting someone with HIV. He sentenced to seven years jail for having unprotected sex with five women and infecting two with HIV. Deported in June 1998 having served four years in jail here, Mwai died in Uganda in September 1998.

1999 – Former male prostitute Christopher Truscott held in “secure” care (he has escaped many times) in Christchurch after being prosecuted in 1999 for having unprotected sex with four men.

1999 – David Purvis, a 31-year-old Pakuranga invalid beneficiary, sentenced to four months jail for committing a criminal nuisance by having unprotected sex with another man. Pleaded guilty.

2004 – Zimbabwean Shingirayi Nyarirangwe, 25, was jailed in Auckland for three years after pleading guilty to four charges of criminal nuisance and three of assault.

2004 – Justin William Dalley, an unemployed 35-year-old of Lower Hutt, was sentenced to 300 hours of community work, six months’ supervision and to pay a woman $1000 in costs because he did not wear a condom during sex with her, despite knowing his HIV positive status. The woman did not contract HIV.

Soon after, he was acquitted of a similar charge because he wore a condom and thus set the legal precedent that by wearing protection an HIV positive man is taking “reasonable precautions” against infection and need not disclose his HIV status.

2009 – Auckland train driver Glenn Mills took his own life facing re-trial for 28 charges relating to 14 people. He had been in custody for over six months.

November 2016 – Christchurch man Johnny Lumsden, 26, is arrested and charged with criminal nuisance following accusations he had unprotected sex with several men without telling them he was HIV-positive.

THE LAW AND HIV

• If you are HIV positive, you do not have to disclose your status before having intercourse as long as you are using a condom.

• If the sex is unprotected, the HIV-positive person has a legal duty to disclose his/her status.

HIV IN NZ

During Mikio Filitonga’s trial, the court heard from Dr Graham Mills, an infectious diseases expert at Waikato Hospital. He said the most common mode of HIV transmission in New Zealand is male gay sex with 80 per cent of positive people believed to have been infected that way.

More than 50 per cent those who are HIV positive – 1500 to 2000 people – in New Zealand are believed to be living within the Auckland District Health Board’s boundaries.

Current estimates are that there are up to 4000 people in NZ who are HIV positive, he said.

Published in the New Zealand Herald on March 24, 2017