Mexico: Roberto Guzman on why HIV criminalisation laws do not protect women from HIV or violence and are inappropriate

Women and HIV criminalisation(Google translation – For the original Spanish version, please scroll down)

By Roberto Guzmán

Despite the fact that HIV infection has no cure, it has now become treatable and mortality has fallen. HIV has become a chronic disease with a higher quality of life and life expectancy. However, social perceptions have not significantly changed and HIV transmission and its gender-implications are still the cause of associated stigma and strong discrimination throughout the infection process and have become a major obstacle for prevention and medical care.

If a woman lives with HIV, her discrimination inhibits personalization of the risks for fear of distrust or of criticisms in her social environment, a situation that reduces the possibility of negotiating preventive measures and undermines her willingness towards her partners, by limiting a systemic diagnosis, by not wanting to share her results and her new life condition and by increasing the probability of not being able to seek treatment for its control.

Although the infection rates in this sector remains stable, women who contract HIV today continue to be ostracized, not only by their own families but also by their communities. They are expelled from their homes or rejected by their spouses to live in terror or to suffer violence, even to be deprived of life as if they were criminals.

If our Congress intended to apply a criminal law to the exposure and transmission of HIV as an outlet for this, perhaps its decree resulted from a well-intentioned desire to protect them in response to a legitimate concern for its rapid expansion. But continuing to allow society to criminalize them, does not foresee the emergence of new transmissions or reduce their vulnerability to the virus, on the contrary it would hurt them rather than help them, by having a negative impact on public health needs and the protection to their human rights. Continuing to criminalize them also does not protect them from sexual violence and rape, nor from unwanted pregnancies, on the contrary, it increases the risk of “secondary criminalization” when rape survivors infected with HIV could be persecuted for a possible exposure and transmission to their babies or their partners.

I believe that instead of responding to HIV by raising fears or laws, a human rights approach would emphasize protecting the dignity of all of them by creating conditions for free and informed taking of their health and life.

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EL CIELO DE LA OPOSICIÓN

Por Roberto Guzmán

La mujer y su criminalización por VIH

Pese a que la infección del VIH no tiene cura, hoy se vuelve tratable y disminuye su mortalidad al tornarse crónica y con mayor calidad y esperanza de vida. Sin embargo, los cambios en la percepción social que aún continúan son menos significativos ya que su transmisión y sus implicaciones respecto al género son causa de un estigma asociado y motivo de una fuerte discriminación en los distintos ámbitos del proceso de la infección al volverse obstáculo importante para la prevención y su asistencia médica.

Sí una mujer vive con VIH, su discriminación inhibe la personalización que tiene frente al riesgo por miedo a generarse desconfianza o crítica en su entorno social, situación que reduce la posibilidad de que se negocien medidas preventivas y el socavar su predisposición con sus parejas, al limitar su detección sistémica al no querer compartir su resultado y nueva condición de vida y la probabilidad de no poder buscar tratamiento para su control.

Pese a que la tasa de infección de este sector permanece estable, las mujeres que hoy contraen VIH continúan siendo condenadas a un ostracismo, no solo por sus propias familias sino por sus comunidades que las expulsan de sus casas o al ser rechazadas por sus cónyuges teniendo que vivir aterradas o sufrir violencias, incluso ser privadas de la vida como si fuesen criminales.

Si nuestro Congreso tuviera la intención de aplicar una ley criminal a la exposición y transmisión del VIH como una salida a esto, quizá su decreto resultaría un bien intencionado deseo por protegerlas como respuesta a una preocupación legítima por su rápida expansión. Pero el continuar permitiendo que la sociedad las criminalice, no prevé la aparición de nuevas transmisiones ni reduce con ello su vulnerabilidad frente al Virus, al contrario las perjudicaría más que ayudarlas, al lograr un impacto negativo en las necesidades de salud pública y en la protección a sus derechos humanos. El seguir criminalizándolas tampoco las protege de la violencia sexual y la violación, ni de los embarazos no deseados, por el contrario, aumenta el riesgo a una “criminalización secundaria” cuando las sobrevivientes de violación si fuesen infectadas por VIH pudieran verse perseguidas por una posible exposición y transmisión a sus bebes o a sus parejas.

Considero que en lugar de responder al VIH generando temor o leyes, un enfoque de derechos humanos pondría énfasis en la protección a la dignidad de todas ellas al crearse condiciones para la toma libre e informada en relación a su salud y su vida.

US: Article (including quotes from Sero's Sean Strub) highlights how movement against HIV criminalisation is growing stronger in 2017

HIV Criminalization Is Detrimental to Public Health. It’s Time for the Law to Catch Up. By Matt Baume. Outward: Expanding the LGBTQ Conversation on Slate.com

It was in the summer of 2015 that then-23-year-old Michael Johnson was sentenced to thirty 30 years in prison for transmitting HIV. Since 1988, his home state of Missouri has imposed harsh penalties for what prosecutors call “reckless infection,” and it’s hardly alone: Most states have, at some time, prosecuted people for transmitting the virus. But those prosecutions may soon come to an end.

Laws that establish HIV-specific crimes date back to the dark years of the epidemic: “Everyone detected with AIDS should be tattooed in the upper forearm, to protect common-needle users,” wrote William F. Buckley Jr. in the New York Times in 1986, “and on the buttocks, to prevent the victimization of other homosexuals.” At the time, hysteria over AIDS produced a national wave of stigmatizing laws—laws that have now been shown to have worsened the epidemic.

“If people are so concerned with HIV transmission, then perhaps the Missouri legislature and Governor Nixon should start by repealing this law,” wrote Kenyon Farrow, the U.S. and global health policy director for the Treatment Action Group, in response to Michael Johnson’s prosecution.

Though it may seem appropriate to discourage HIV transmission, laws that create HIV-specific crimes “are unjust and harmful to public health around the world,” according to the Infectious Diseases Society of America. Rather than discouraging transmission, the laws actually discourage patients from seeking testing and care, which in turn leads to more transmissions. Numerous other public health experts and political leaders have called for an end to HIV prosecutions, including the American Medical Association, the National Association of County and City Health Officials, the U.S Conference of Mayors, and the Obama administration’s Department of Justice.

But reform comes slowly, and advocates for repeal have found themselves toiling for years to overturn the harmful statutes. Now, at last, a coordinated nationwide effort is taking shape, and 2017 is likely to see significant advances in the decriminalization of HIV.

“There’s two big shifts over the last five or six years,” said Sean Strub, executive director of the Sero Project, a group that advocates for repeal. “One, the people in the LGBT community … have an understanding of what HIV criminalization is. It’s a general awareness of the phenomenon in the communities most directly affected.” He estimates that his organization has had over a thousand speaking engagements in the last half-decade.

“Second: The issue is increasingly seen in public health terms,” he said. “To be fair, there wasn’t a lot of hard evidence [until recently]. We now know that 25 percent of people with HIV in the U.S. know one or more individuals who are afraid to get tested for HIV for fear of getting criminalized.” That statistic is based on a Sero Project survey of over 2,000 people, designed to determine how the partners of people with HIV access health care. Their findings indicate that criminalization has a public health impact beyond people who already have HIV.

Organizations like Sero Project have learned some valuable lessons over the last few years about harm reduction, and they’re now leveraging those best-practices in communities and legislatures around the country. Those strategies include coordinated educational efforts that simultaneously hit multiple communities: Faith, LGBTQ, public health, and legal. In addition, advocates are establishing local coalitions so that legislative pressure comes from constituents, rather than national groups. And they’re engaging with individual prosecutions around the country.

This year will see particularly intense focus in midwestern and southern states: Mississippi, Tennessee, Georgia, the Carolinas, Ohio, and Indiana will see intensive outreach efforts. California is making great strides, with a bill announced earlier this month to modernize the state’s laws. That effort has included a detailed study of prosecutions, with an analysis of demographic data that could become a model for modernization in other states.

Customized approaches are key to the approach in each state. In Florida, for example, advocates have reached out to members of the criminal justice system, from police officers all the way up to judges. Iowa’s decriminalization effort included a collaboration between hepatitis and HIV groups.

Another important evolution is how closely reform advocates are working with advocates for other forms of social change. “Whether it’s trans activists or drug policy people or sex work activists or Black Lives Matter or penal system reform, HIV decriminalization seems to be a nexus for those efforts,” said Strub. “It’s so closely tied to the criminalization of bodies. … Five or six years ago, other organizations were not involved in this work.”

At the national level, advocates are sponsoring a Congressional lobbying campaign in March. Top priorities include reforms to Army policy, as well as the creation of incentives for states to modernize their laws. (An old provision in the Ryan White CARE Act, a 1990 law that provided funding for HIV programs, prompted many states to impose criminalization in the first place.) The Repeal HIV Discrimination Act, sponsored by Barbara Lee (D-CA) and Ileana Ros-Lehtinen (R-FL), would provide a framework for state-by-state repeal—and although it’s languished since 2013, it will see a renewed push next month.

Among the states to watch: Missouri, home of Michael Johnson. The state is in the midst of an organizing effort that Strub estimates could take two or three years. Johnson’s conviction was recently overturned due to prosecutorial misconduct, and he’s been remanded for a retrial likely to happen sometime this year. That’s encouraging news, though Missouri Court of Appeals refused to rule on the constitutionality of the law under which Johnson was convicted.

As a result, Johnson and many others like him will remain tangled in a maze of trials, legislation, and lobbying efforts, trapped by misguided laws that impose preventable harm—for now.

Nigeria: On Zero Discrimination Day, Coalition of Lawyers for Human Rights strongly denounce judicial HIV stigma in ongoing child custody case (Press release)

Breach of HIV status confidentiality and discrimination by the Hon Justice Olagunju of the Oyo State Judiciary

Federal Capital Territory, Abuja. March 1, 2017.

Coalition of Lawyers for Human Rights, COLaHR, is a Coalition of Human Rights Lawyers working on issues of Persons Living With, Affected By or Most at Risk of HIV.

COLaHR has been following and monitoring a case involving a mother living with HIV, which is being adjudicated upon before the Hon Justice Olagunju of Court 7 of the Oyo State High Court of Justice.

Our interest in the matter is basically to monitor how courts, in the dispensation of justice involving persons living with HIV, respect their confidentiality and possible traces of stigma and discrimination, in accessing justice.

COLaHR is concerned with the attitude of the Honourable Justice on all fronts in this regard. On the 20^th of February 2017, while lawyers on both sides were delivering their final addresses, the presiding Judge, publicly made comments which publicly revealed the HIV status of the plaintiff. Not only was this wrong and a gross breach of confidentiality, the Judge also made comments obiter in the case of custody of the child, which exhibited gross stigmatisation and discrimination.

The Judge largely stated as follows:

“putting the interest of the child first, imagine the trauma that the little girl will pass through when the news of her mother being HIV-positive spreads across her school.”

The above quote, which was made in passing (obiter) and may not be included in the courts records, is patently discriminatory and coated with stigma. It betrays lack of appreciation of the prevailing HIV and AIDS laws at the federal and state levels. Several questions arise from Justice Olagunju’s statement:

What happens if both parents of the child are HIV-positive? Will such a child be handed over to foster parents?
Are we saying that persons with HIV in Nigeria are not fit for parenthood?
Should all HIV-positive adults therefore be sterilised?
Who will spread the news of Omolara being HIV-positive all over her daughter’s school?
Is the right to confidentiality of HIV status not guaranteed under Nigerian laws?

COLaHR makes the following findings from our monitoring of this case:

The disposition of Hon. Justice Olagunju clearly casts doubt on the ability of the court not to be swayed by the Plaintiff’s health status in coming to a decision on the matter.

The Plaintiff, in her statements to COLaHR has clearly shown the fear as in above, given her Husband’s request for custody of the child is hinged on HER HIV-POSITIVE STATUS.

It is in light of the above that COLaHR calls on Hon. Justice Olagunju to excuse himself from the case as justice must not only be done, but must be seen to have being done.

We call on the Chief Justice of the State, to direct Hon. Justice Olagunju to step down from the case.

We will in consonance with the law, share our findings with the Federal Attorney General and Minister of Justice and the State Attorney General respectively.

Signed

Roseline Oghenebrume,

National Coordinator, Coalition of Lawyers for Human Rights

Canada: Toronto’s ‘Now’ weekly newspaper prominently features HIV criminalisation impact, advocacy and advocates

This week, Toronto’s weekly newspaper, ‘Now’, features four articles on HIV criminalisation and its impact in Canada.

The lead article, ‘HIV is not a crime’ is written from the point of view of an HIV-negative person who discovers a sexual partner had not disclosed to him. It concludes:

After my experience with non-disclosure, I felt some resentment. But while researching this article, I reached out to the person who didn’t disclose to me. We talked about the assumptions we’d both made about each other. It felt good to talk and air our grievances.

I realized I’d learned something I’d never heard from doctors during any of my dozens of trips to the STI clinic, something I’d never heard from my family, my school, in the media or from the government – that you don’t need to be afraid of people living with HIV.

A second article, Laws criminalizing HIV are putting vulnerable women at greater risk, highlights the impact HIV criminalisation is having on women in Canada, notably that it is preventing sexual assault survivors living with HIV from coming forward due to a fear they will be prosecuted for HIV non-disclosure (which, ironically, is treated as a more serious sexual assault than rape).

Moreover, treating HIV-positive women as sex offenders is subverting sexual assault laws designed to protect sexual autonomy and gender equality. Front-line workers and lawyers say they’re hearing from HIV-positive women who are afraid to report rape and domestic abuse for fear of being charged with aggravated sexual assault themselves.

“People come to me all the time who don’t know what to do,” says Cynthia Fromstein, a Toronto-based criminal lawyer who’s worked on 25 to 30 non-disclosure cases. “Canada, unfortunately, is virulent in its zeal to prosecute aggravated sexual assault related to HIV non-disclosure.”

It also features a strong editorial, ‘HIV disclosure double jeopardy’ by the Canadian HIV/AIDS Legal Network’s Cecile Kazatchkine and HALCO’s Executive Director, Ryan Peck, which notes:

In a statement that mostly flew under the radar, Minister of Justice Jody Wilson-Raybould declared, on World AIDS Day (December 1), her government’s intention “to examine the criminal justice system’s response to non-disclosure of HIV status,” recognizing that “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”

Wilson-Raybould also stated that “the [Canadian] criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”

This long-overdue statement was the first from the government of Canada on this issue since 1998, the year the Supreme Court of Canada released its decision on R v. Cuerrier, the first case to reach the high court on the subject.

Finally, the magazine features a number of promiment HIV activists from Canada, including Alex McClelland, who is studying the impact of HIV criminalisation on people accused and/or convicted in Canada.

He contributed his first piece to HJN last month.

Canada: Ontario Court of Appeal rules that HIV disclosure by police in news releases does not violate a person's constitutional rights

Court ruling sets ‘low bar’ for police to disclose HIV status

Ontario Court of Appeal finds police didn’t violate suspect’s Charter rights by disclosing health status in news release

If a person charged with a crime is found to be HIV-positive, that could be enough for police to disclose that very personal and sensitive information to the public.

That’s one takeaway from an Ontario Court of Appeal decision that advocates say is cause for concern for those living with HIV or AIDS, which continue to attract stigma and misunderstanding despite evolving science.

The province’s top court overturned a lower court decision last week, ruling that that Durham Regional Police did not breach former youth pastor Kris Gowdy’s constitutional rights following his 2012 arrest for Internet child luring when they disclosed in a news release that he was HIV-positive.

Gowdy was arrested after arriving at the home of someone who had been posing as a 15-year-old boy online, to perform oral sex, only to discover the individual was a police officer. Police searched his car and discovered documentation and medication proving he was HIV-positive. The arrest and Gowdy’s HIV status were widely reported on at the time, making international headlines.

Writing for a unanimous three-judge panel, Justice David Watt said the police force’s actions in disclosing Gowdy’s HIV status were “clearly in retrospect not advisable.”

But the judges held that the release of that information did not violate Gowdy’s right to security of the person because there had been no finding at trial that the disclosure had a psychological effect on Gowdy beyond the impact already caused by the charge he was facing.

They also concluded that provincial privacy legislation contains an exemption for municipal institutions to release personal information that they have lawfully gathered if it is for a “consistent purpose.”

In this case, Watt said that the “consistent purpose” was to further the investigation “by inviting responses from other sexual partners of Gowdy” who may be at risk of transmission.

“The police had reasonable suspicion; reasonable grounds to believe further offences had been committed was not required for the purpose of the media release,” Watt said.

The court dismissed Gowdy’s appeal of the conviction, but allowed the Crown’s appeal. The court substituted Gowdy’s two-year conditional sentence, which he served at home, with a one-year jail term, although it said he should not be re-arrested because he had already served his sentence.

As noted by the Court of Appeal, the lead investigator in the case did not seek legal advice or the permission of the police chief or his designate before issuing the news release, did not seek medical advice to find out the likelihood of transmission of the virus through a sexual activity such as fellatio, and did not seek to confirm Gowdy’s assertion that his medication had rendered his viral load so low that it made transmission unlikely.

Gowdy also never admitted in his interview with police that he had had sexual contact with individuals who were unaware of his HIV status, the court said.

“The lead investigator testified that, to his knowledge, he had never before investigated someone with HIV in his 23 years of policing,” Watt wrote. “The investigating officer acknowledged he did not consider the Charter rights of Kris Gowdy before requesting the media release.”

Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, one of the interveners in the appeal, said in an interview with the Star that police should have turned their minds to what the actual risks of transmission may have been in this case.

“I can’t think what that ‘reasonable suspicion’ is actually founded on. I don’t think the suspicion is a reasonable one, all the information the officer had was that this accused was HIV-positive,” Elliott said.

“This is a case in which merely finding out someone has HIV was seen by police as sufficient for putting out a press release, basically engaging in a fishing expedition.”

He also described the court’s interpretation of the “consistent purpose” exemption as “very, very liberal,” saying it sets an “extraordinarily low bar” that police have to clear before releasing a person’s HIV status.

The case highlights what advocates say is a lack of proper training for officers in dealing with HIV-positive individuals and the absence of clear statutes governing the disclosure of such information by police.

Durham police spokesman Dave Selby declined to comment on the court’s decision.

“In general, I can say that we regularly review our policies to ensure they are consistent with all applicable laws and judicial decisions. We will review this decision carefully, as well,” he said in an email. “We will continue to respect the fundamental privacy rights of all citizens while balancing our community safety responsibilities.”

Gowdy’s appeal lawyer, Russell Silverstein, said his client is considering whether to seek leave to appeal to the Supreme Court of Canada.

“When it comes to one’s HIV status, different considerations apply, it’s not the same as telling the world that the accused is suffering from cancer or some other disease,” he told the Star.

“You can’t say that the release of such information is per se a Charter breach, it’s going to depend on the circumstances, and the question is: what should the appropriate test be for the disclosure of that particular information?”

A former pastor with the Free Methodist Church of Canada, Gowdy posted an ad on Craigslist in 2012 looking for men interested in receiving oral sex, specifying he was looking for “under 35, jocks, college guys, skaters, young married guy.”

A detective with the OPP’s Child Sexual Exploitation Section homed in on the use of the words “young,” “skater,” and “under 35” in Gowdy’s ad, and began an online conversation with him, posing as a 15-year-old boy.

Shortly after agreeing to meet the “boy” for oral sex, Gowdy was arrested. He maintained in court that he never actually believed the person he was conversing with was 15 years old.

Gowdy, a former pastor with the Free Methodist Church of Canada, had kept his sexual orientation secret from his family and church, his 2014 trial heard. He had no prior criminal record and there were no complaints about inappropriate behaviour from the ministries where he had worked as a pastor.

“I regret incredibly my actions, they were foolish and inappropriate,” Gowdy told the Star in an interview in 2014. “It feels to me like there should be some kind of reprimand to these officers at the minimum.”

At trial, Justice Michael Block found that the release of Gowdy’s HIV status violated his constitutional rights. He circumvented the mandatory minimum sentence of one year in jail for the luring offence, and instead imposed a two-year conditional sentence, which Gowdy served at home. Gowdy’s name was to remain on the sexual offender registry for 20 years.

“Mr. Gowdy had a right to make his own choices concerning the disclosure of his HIV status,” Block said. “No doubt he would have chosen his own method and different timing if he ever determined to inform those near to him. Absent evidence of serious risk of transmission and rigorous compliance with statute, no one had the authority to make that decision for him.”

Russia: Lawmakers in the Altai Krai region unanimously agree to support a law to allow for mandatory HIV testing AND treatment

English version – Translation (For Russian version, please scroll down)

The Provincial Parliament’s legislative initiative will be sent to the State Duma as a draft federal law

BARNAUL, December 15. Deputies of the Legislative Assembly of the Altai Krai took the initiative to take on the federal law on compulsory treatment of people diagnosed with HIV. They decided to send a proposal to the State Duma as a session of the regional parliament adopted it, reports the press service of the Legislative Assembly.

“The Provincial Parliament will send to the State Duma a legislative initiative of the draft federal law” On Amendments to the Federal Law “On Prevention of Spread of the disease caused by HIV.” For example, citizens suffering from social diseases, which constitute a danger to others (tuberculosis), are subject to mandatory laboratory examination and medical observation or treatment and compulsory hospitalization or isolation in the manner prescribed by the law. The initiative involves the Altai Deputies to extend these norms to HIV-infected patients”, – said the press service.

They added that all 66 deputies unanimously supported the initiative to amend the Law. “The adjustment of the law is to allow professionals, as appropriate, provide forced treatment and monitoring of HIV-infected people to avoid the spread of the virus,” – explained the Legislative Assembly.

According to the press service, the medical check-up and treatment of HIV-infected people in Russia is fulfilled at the expense of the federal subsidies and intergovernmental transfers of the RF federal budget entities to ensure the procurement of antiviral drugs. “Thus, additional funding for coverage of medical observation and treatment of patients with HIV infection is not needed” – added the Legislative Assembly of the Altai Territory.

For most of the Altai Territory, the issue of HIV is relevant: according to the Regional AIDS Centre, for the past 10 years in the region, the number of people diagnosed with HIV has doubled to more over 24 thousand people. Now in the region 217 children and more than 3 thousand adults get treatment. According to official data of Ministry of Health of the Russian Federation, totally 824 thousand HIV cases are registered in Russia. The average therapy coverage nationally is about 40%.

Краевой парламент в порядке законодательной инициативы направит в Госдуму проект соответствующего федерального закона

БАРНАУЛ, 15 декабря. /Корр. ТАСС Ксения Шубина/. Депутаты Алтайского краевого Законодательного собрания выступили с инициативой принять на федеральном уровне закон о принудительном лечении людей с диагнозом ВИЧ. Решение направить такое предложение в Госдуму было принято на сессии регионального парламента, сообщили в пресс-службе Заксобрания.

“Краевой парламент направит в Госдуму в порядке законодательной инициативы проект федерального закона “О внесении изменений в Федеральный закон “О предупреждении распространения в Российской Федерации заболевания, вызываемого ВИЧ”. К примеру, граждане, страдающие социально значимыми заболеваниями, представляющими опасность для окружающих (туберкулез), в обязательном порядке подлежат лабораторному обследованию и медицинскому наблюдению или лечению и обязательной госпитализации или изоляции в порядке, установленном законодательством РФ. Инициатива алтайских депутатов предполагает распространить эти нормы и на ВИЧ-инфицированных больных”, – сказали в пресс-службе.

Там добавили, что все 66 депутатов единогласно поддержали инициативу о внесении изменений в ФЗ. “Корректировка закона должна позволить специалистам, в случае необходимости, проводить лечение и наблюдение за ВИЧ-инфицированными в принудительном порядке, чтобы избежать распространения вируса”, – пояснили в Заксобрании.

По данным пресс-службы, диспансерное наблюдение и лечение ВИЧ-инфицированных в России осуществляется за счет федеральных субсидий и межбюджетных трансфертов федерального бюджета субъектам РФ на обеспечение закупок антивирусных препаратов. “Таким образом, дополнительного финансирования на охват диспансерным наблюдением и лечением больных ВИЧ-инфекцией не потребуется”, – добавили в Заксобрании Алтайского края.

Для самого Алтайского края тема борьбы с ВИЧ актуальна: по данным регионального Центра СПИД, за последние 10 лет в регионе количество людей с выявленным диагнозом ВИЧ увеличилось в два раза – до более чем 24 тыс. человек. Сейчас в регионе получают лечение 217 детей и более 3 тыс. взрослых. По официальным данным Минздрава РФ, всего в России зарегистрировано 824 тыс. случаев ВИЧ-инфекции. Охват терапией в среднем по стране – около 40%.

Originally published in TASS

US: Discussion about the decriminalisation of HIV takes centre stage at World AIDS day panel in Georgia

A panel of HIV activists and LGBT organizers took aim at laws in Georgia that criminalize people with HIV and can leave them facing prison sentences of up to 20 years.

The discussion about decriminalizing HIV took center stage at a World AIDS Day panel on Nov. 30. People with HIV in Georgia can face a prison term of up to 10 years for having sex with someone without disclosing their HIV status. Even acts like spitting – which do not transmit HIV – are criminalized when directed towards a law enforcement officer with penalties that include up to 20 years of prison time.

Last year, a gay Atlanta man was charged in South Carolina with exposing a sex partner to HIV. Tyler Orr said he did disclose and as the panelists pointed out during the recent discussion, what counts as disclosure and how to avoid “he said, she said” debates in court is unclear.

“What advocates have tried to encourage folks to do in this really unwinnable situation is to have a notarized document or affidavit before you engage in one of these punishable acts,” Mel Medalle of SisterLove told the crowd of about 40 people.

“Which almost never happens, but that is how extreme and absurd this situation is,” Medalle added.

Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, pointed out that disclosure laws can also create safety risks for people with HIV.

“Every single time, especially as a woman, every single time, it’s me risking my personal safety,” Martinez said.

Marxavian Jones, who serves as one of Georgia Equality’s Youth HIV Policy Advisors, echoed agreed with Martinez.

“Who is going to defend me when I disclose my status to someone and they take it to social media and decide they want to tell everybody,” Jones said.

The Center for HIV Law & Policy has pointed to the increased risk of intimate partner violence that can come with disclosure, writing that disclosure can “provide an additional excuse, or cover, for physical violence.”

The ongoing stigma of HIV-positive individuals also means that – as Jones pointed out – a disgruntled lover posting a partner’s HIV status to social media can have real consequences, including job loss or being outed to family.

During the National HIV Prevention Conference in Atlanta last year, public health experts and HIV activists argued that rather than criminalizing HIV-positive people, and adding to the stigma they face, people with HIV should be pushed to treatment options.

At the recent panel, participants also highlighted legislation being drafted by the Coalition to End HIV Criminalization in Georgia. The coalition is currently reaching out to legislators to find a sponsor for the bill.

“[The legislation is] so we can repeal, which would completely get rid of it,” Medalle said. “The other option would be to reform it, so to make changes to it but to ultimately have some semblance of it.”

While Medalle said it may seem like a “no brainer that we wouldn’t want this [law],” stigma and other means of criminalizing HIV-positive individuals makes the issue more complicated. In Texas and a handful of other states, there are no specific statutes that target people with HIV but they are still prosecuted under other laws including reckless endangerment.

Reforming the law means that advocates can create better standards for prosecutions, and can “craft a law that comports with modern HIV science, what we know about the routes of transmission,” Medalle said.

Martinez, who is a member of the coalition, said the HIV criminalization law in Georgia also falls short in other aspects.

“The law in Georgia doesn’t require intent to infect, it doesn’t require likelihood of transmission because it has things like spit, urine, feces in it. It doesn’t require transmission,” Martinez said.

The Georgia law also doesn’t take into account issues like condom usage or advising a partner to take PEP (post-exposure prophylaxis) after sexual intercourse – acts which reduce the likelihood of transmission. The reforms to the law would change that, the panelists said.

Emily Halden Brown, a Georgia Equality field organizer who organized the panel discussion, said the event highlighted how people with HIV are impacted by it.

“I think the most valuable moment in all of the discussions I’ve ever been a part of on this, are the moments where people living with HIV share the stories of how they are directly impacted,” Brown said. “Anytime someone shares their personal story you can just feel the change in the audience.”

The event was hosted by Georgia Equality, SisterLove, and The Counter Narrative Project at Gallery 874. The panel discussion coincided with the “Living With” art exhibit, which featured art about the experiences of living with HIV. A closing reception helped raise funds for Georgia Equality’s HIV policy work.

Published in Project Q on Dec 12, 2016

Canada: Canada’s sexual assault laws, as currently applied, put women living with HIV at increased risk of harm

Women living with HIV facing double jeopardy

Canada’s sexual assault laws are being applied in ways that, ironically, put some women at increased risk of harm. Women living with HIV are stuck between a rock and a hard place. If they disclose their HIV status to an intimate partner, they may be exposed to violence. If they don’t, they could go to jail for sexual assault.

People who fail to disclose HIV can be charged with fraud, invalidating sexual consent. They can be prosecuted for aggravated sexual assault, the most serious form of the crime, normally reserved for rapes compounded by physical violence. Conviction carries a penalty up to life in prison, and lifelong registry as a sex offender — even when there is no transmission of HIV nor any meaningful risk.

There is broad scientific consensus that when HIV is managed with anti-retroviral therapies, the risk of transmission is negligible, even without a condom. Today’s treatments can reduce viral loads to undetectable levels. Unfortunately, our courts haven’t caught up with the science. Legal practices are at odds with public health. Rather than hazard jail, people at risk of HIV may seek refuge in ignorance, choosing not to get tested.

Recently, Attorney General and Justice Minister Jody Wilson-Raybould acknowledged: “The criminal justice system must adapt to better reflect the current scientific evidence. . . . This could include a review of existing charging and prosecution practices.”

The statement was welcomed by Cécile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network and a member of the Ontario Working Group on Criminal Law and HIV Exposure. The organization has been working since 2009 to engage provincial attorneys general in developing prosecutorial guidelines that would limit prosecution to cases of intentional transmission. Foot-dragging on change has exposed Canada to increasing international criticism.

Kazatchkine believes the International AIDS Conference in Durban this past July may have been a turning point in the evolving federal position. During a plenary session Justice Edwin Cameron, South Africa’s first openly gay and HIV-positive Constitutional Court judge, singled out two nations with terrible records on HIV criminalization. “He mentioned Zimbabwe and he mentioned Canada,” she notes.

This message was compounded in the recent report by the UN Committee on the Elimination of All Forms of Discrimination Against Women, which called attention to Canada’s “harsh criminal sanctions” for nondisclosure. The report joins a chorus of international organizations recommending criminalization be limited to intentional transmission of the virus.

Criminalizing nondisclosure has had a particularly harsh impact on women, who often fear admitting they are HIV-positive will provoke violent reactions. Of some 180 prosecutions to date, Kazatchkine says, at least 18 of the defendants are women, many of whom were already marginalized by poverty or abuse.

Some of the women contracted the virus while being sexually assaulted themselves; now they’re being labelled sex offenders. The law’s application also has a disproportionate impact on Aboriginal women, who comprise at least six of 18 known female defendants.

Kazatchkine sees progress toward meaningful dialogue: Minister Wilson-Raybould’s statement “is having an impact.” At a roundtable Monday with several provincial ministries, participants got a keen sense of how women with HIV are caught between prosecution and potential violence. Kazatchkine was encouraged when Tracy MacCharles, the minister responsible for women’s issues, suggested the issue could be brought before the Ontario Roundtable on Violence Against Women.

The government has not committed to specific action. But advocates are cautiously optimistic that things are finally moving in the right direction.

Published in St. Catharines Standard on Dec 10, 2016

Canada: Criminalisation of people with HIV is based on and perpetuates misinformation

Laura Derksen

Health Economist, Assistant Professor at the University of Toronto

HIV Stigma Can Be More Dangerous Than The Disease Itself

In the past 20 years the medical implications of an HIV diagnosis have changed completely, almost miraculously. Antiretroviral drugs allow people living with HIV to have unprotected sex without passing the virus to their partners, to have HIV-negative children and to live healthy lives well into old age.

In fact, in 2016 the stigma surrounding HIV is probably more life-threatening than HIV itself. The fear of being “outed” as HIV positive stops a lot of people from seeking treatment. A delay in treatment allows the virus to spread, and in many cases, leads to death.

Stigma has many causes, one of which is a genuine fear of contagion. Despite the fact that HIV is now a treatable condition, “educational” messages on HIV prevention are still based on fear, and almost universally exaggerate the risks of HIV infection and its consequences.

Many of us still seem to view HIV as a life-threatening disease rather than a relatively mild condition.

Most people think that HIV is transmitted easily through unprotected sex, though the transmission rate is less than one per cent per act. When a person is taking antiretroviral drugs, the virus is suppressed and transmission is nearly impossible. Many of us still seem to view HIV as a life-threatening disease rather than a relatively mild condition.

In Canada, a person who is diagnosed with HIV and has unprotected sex can be sent to jail for aggravated sexual assault, even if they are taking medication and are virally suppressed. Such criminal convictions are based on and perpetuate misinformation. When it comes to HIV prevention, proper adherence to antiretroviral drugs is actually more effective than condoms.

What’s more, Canadian policy specifically discourages testing and treatment, because a diagnosis makes you criminally responsible. Treatment prevents the spread of HIV, so a policy that criminalizes HIV transmission could actually increase the spread of the virus. Even worse — high-risk individuals (those who frequently engage in unprotected sex) are the most susceptible to a conviction and therefore the least likely to get tested and treated. In November, the United Nations urged Canada to limit criminalization to cases of intentional transmission.

I study barriers to HIV testing in Malawi, a small country in southern Africa with an HIV infection rate of around 15 per cent. I recently ran a large-scale information experiment to correct a common misconception: most participants didn’t know that an HIV-infected person who is taking antiretroviral drugs is not contagious. Providing this information reduced stigma at the community level which caused a significant increase in HIV testing.

While Canada is a long way from Malawi, the social issues surrounding HIV are in some ways similar. Approximately one in five people living with HIV are undiagnosed. Misinformation and an inflated fear of HIV infection are widespread.

In a 2012 survey of Canadians commissioned by the Public Health Agency of Canada, nearly half believed that AIDS was always fatal, and only one-third believed that antiretroviral drugs were very effective. Half of survey respondents were not comfortable drinking from a glass once used by an HIV-infected person.

I understand the instinct to overstate the risks of HIV in order to encourage prevention, but messages that stoke fear and stigmatize HIV come with serious unintended consequences. Antiretroviral drugs are our best hope of ending the HIV epidemic.

In fact, “treatment as prevention” was a strategy developed right here in Canada, at the B.C. Centre for Excellence in HIV/AIDS. It has now been embraced by both the UN and the WHO. Rather than pushing prevention through fear, we should mobilize to support people living with HIV.

Good policy should focus not on fear, but on providing accurate information, encouraging HIV testing and providing universal access to life-saving medication.

[Press release] Activists call on leaders to protect human rights and stop imposing criminal sanctions against people living with HIV and TB

INTERNATIONAL HUMAN RIGHTS DAY 2016, 10 DECEMBER 2016:

Windhoek, Namibia, 09 December 2016: On the eve of International Human Rights Day 2016, the AIDS and Rights Alliance for Southern Africa (ARASA), a partnership of 106 organisations working in 18 countries in southern and east Africa, calls on governments to curb the increasing trend of enacting and enforcing incoherent, ineffective laws that undermine human rights, including the right to health, and threaten to derail the progress made to end the twin epidemics of HIV and TB.

ARASA warns that the commitments made towards eliminating HIV and TB – including the 2016 Political Declaration on HIV and AIDS, the Sustainable Development Goals and the End TB strategy – stand on shaky foundations, unless they are supported by a human rights-based approach, including strong political will and coherence between law and science.

Although there has been some improvement in ensuring access to treatment and care for people living with HIV and TB, there is a still a long way to go in terms of aligning HIV, TB and human rights.

“We cannot talk about the 90-90-90 targets without addressing the endemic human rights barriers, underpinned by the criminalisation of key population groups, including sex workers, people who use drugs, lesbian, gay, bisexual, transgender and intersex (LGBTI) people, people living with disabilities, and women. In addition, the current proliferation of HIV-specific criminal laws, which unjustly target people living with a treatable disease, are eroding the gains made in the HIV and TB responses,” said Michaela Clayton, Director of the ARASA.

The Advancing HIV Justice 2 report, published in June 2016 by the HIV Justice Worldwide partnership, of which ARASA is a member, highlights that, since 2000, 30 sub-Saharan African countries have now enacted overly broad laws related to the criminalisation of HIV transmission, exposure and non-disclosure.The Report also notes that the rise of reported prosecutions in Africa (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on this continent, is especially alarming.

“It’s ironic that HIV criminalisation began in sub-Saharan Africa just as the commitment to HIV treatment scale-up was envisioned at the Durban 2000 AIDS Conference,” says the report’s author, Edwin J Bernard, Global Co-ordinator of the HIV Justice Network. “These laws were not based on evidence but political expediency – the vision of ‘ending AIDS’ is totally incompatible with criminalising people living with HIV.”

“In the course of the Southern Africal Litigation Centre’s work, we continue to observe significant stigma and discrimination against people living with HIV and key populations, including through inappropriate applications of criminal laws, and unhealthy, inhumane conditions of detention in southern Africa. An effective HIV and TB-response demands that governments urgently reform legal environments that enable these abuses, and advance meaningful access to justice and accountability for victims of rights violations,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre (SALC).

Advocates around the world are working tirelessly to ensure that the criminal law’s approach to people living with HIV is consistent with up-to-date science, as well as key legal and human rights principles. But, unless investments are matched with clear programmatic articulation of human rights based approaches – essential for people living with HIV and TB and members of key and other vulnerable populations groups who currently have little or no access HIV and TB prevention, treatment, care, and support services – then the current rhetoric about the end of HIV and reduction of TB prevalence rates, will remain purely academic.

“Disclosure of HIV happens with support, with counselling and with an enablement. This is not the reality in the places where an average person seeks health services. HIV criminalisation goes against HIV prevention”, said Dora Kiconco Musinguzi, The Executive Director of the Uganda Network on Law, Ethics and HIV/AIDS (UGANET),

who have been petitioning against the Ugandan government for the amendment of the potentially harmful provisions of the HIV/AIDS control and Prevention Act 2015 which includes allowing for the disclosure of a person’s HIV-positive status, either forcefully, at the discretion of a health worker or at a’ concerned person’s’ request.

The evidence is in and the future is looking bleak: ARASA’s 2016 HIV, TB and Human Rights in Southern and East Africa (SEA) Report, which conducts scans of the legal and regulatory framework for responding to HIV, TB and sexual reproductive health (SRH) in SEA to determine whether laws, regulations and policies protect and promote the rights of all people, including key populations, continues to show that while these laws are meant to protect and promote the rights of all people, they are instead used against the most vulnerable people in our societies, not only moving them away from essential health services, but criminalising their rights to health and life.

This, while shocking figures released by the World Health Organisation in October 2016, show an estimated 10.4 million new TB cases and 1.8 million TB deaths in 2015, are a case in point. This is a 20% revision upwards from last year’s figures, showing that the TB epidemic is a bigger problem than we thought. There is no TB elimination scenario that is realistic without improved prevention.

Our conventional approaches to dealing with TB need to be revisited. As eloquently stated by Honourable Michael Kirby, a Member of the United Nations Secretary-General’s High–Level Panel on Access to Essential Medicines, in his Ten commandments for TB, TB requires rights-based approaches, and a revisiting of the ineffective hostile, punitive approaches, involuntary treatment and incarceration that have been levelled against people living with TB.

ARASA recommends that civil society and governments should work together to:

1. Advocate to expand access to legal services for people with HIV and key populations and provide information about available legal services.

2. Remove all overly broad and HIV-specific laws that criminalise HIV transmission, exposure and non-disclosure and criminalisation laws related to sex work, people who use drugs and gender identity for LGBTI.

3. Expand HIV programming that is acceptable and accessible for LGBTI people, through LGBTI-friendly services.

4. Advocate for legislation that explicitly criminalises marital rape and set a minimum age for marriage and access to Post Exposure Prophylaxis for Gender-Based Violence (GBV) survivors.

5. Repeal laws that undermine or prohibit distribution of condoms and lubricants in prisons, including laws that criminalise sex between men in prisons