Ethiopia: New report on HIV criminalisation law with a focus on Ethiopia concludes that the use of criminal law to address HIV is anappropriate

Abstract

States ever since the outbreak of HIV/AIDS have been using different methods in order to combat the pandemic if possible and to reduce vulnerability. In spite of this, HIV/AIDS continues to be prevalent especially in a less developed countries to the extent that it to be hurdle for development. Criminalization of HIV/AIDS patients is one of the mechanisms that are used in the fight against the deadly disease. However, employing criminalization as prevention and vulnerability reduction strategy poses a question and stimulates a debate. Hence, the main thrust of this article is to identify this challenge and to assess whether criminalization of HIV/AIDS patients reduce vulnerability to HIV/AIDS. This being the aim it will also go on to analyze the role of criminal law in a public health issue. In doing so, the article will discuss experience of countries in criminalization of HIV/AIDS patients along side with international frameworks. At a glance, criminal law through a vehicle of punishment seems to play a role in reducing vulnerability to HIV/AIDS but, the writer based on the analyses of relevant literature and experiences of countries, argues that the use of criminal law to address HIV is inappropriate except in rare cases where a person acts with conscious intent to transmit HIV and does so, and this is because of the high degree of proof required in criminal case and the difficulty of using criminal law in HIV related issue due to the nature of the disease and the absence of technology used for the required proof in the criminal law, i.e. beyond reasonable doubt.

Ekubu, Y. (2016) Reducing Vulnerabilities to HIV: Does the Criminalization of HIVAIDS Patients Contribute?. Beijing Law Review, 7, 292-313. doi: 10.4236/blr.2016.74027.

The report can be downloaded here

US: New Report from the William Institute finds HIV criminalisation laws in California do not reflect medical science

LOS ANGELES — In California, outdated HIV criminalization laws do not reflect the highly effective medical advances for reducing the risk of HIV transmission and extending the quantity and quality of life for people living with HIV.

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status. California has four HIV-specific criminal laws.

In HIV Criminalization in California: Evaluation of Transmission Risk, researchers Amira Hasenbush and Dr. Brian Zanoni suggest that these HIV criminal laws in California are not in line with medical science and technology related to HIV and may, in fact, work against best public health practices.

“Nine out of ten convictions under an HIV-specific criminal law or sentence enhancement have no proof of exposure to HIV, let alone transmission,” said Amira Hasenbush. “No HIV criminal laws in California require transmission for a conviction.”Key findings include:

From 1988 until June 2014, 379 incidents resulted in convictions for an HIV-specific felony or sentence enhancement.
- Of those, 100 percent required no actual transmission of HIV.
- 98 percent did not require intent to transmit HIV.
- 93 percent involved no specific allegation of conduct that is likely to have transmitted the virus:
  - Ninety percent of convictions were in solicitation incidents in which it is unknown whether any contact beyond a conversation or an exchange of money was initiated, thus possibly not having any exposure to HIV.
  - Three percent of incidents involved oral sex, a sex act whose transmission risk is estimated as “low” by the CDC.
  - Only seven percent of incidents involved vaginal or anal sex by definition of the crime.

HIV criminal laws have been disproportionately applied to sex workers. This has a disproportionate impact on women and people of color. Since solicitation by definition includes survival and subsistence sex work, these laws are also likely to disproportionately impact LGBT youth and transgender women of color.

Laws that criminalize conduct of a person who knows that they are HIV-positive may disincentivize testing and work against best public health practices.

The Williams Institute, a think tank on sexual orientation and gender identity law and public policy, is dedicated to conducting rigorous, independent research with real-world relevance.

Full report can be read here

Canada: Canadian Report highlights a "clear pattern of racism" in media reporting of HIV-related offences

Media accused of racism in reporting HIV-related crime

Black males with HIV account for 20 per cent of the 181 people charged for no disclosing HIV status to sexual partners, but 62 per cent of newspaper articles focused on their cases.

Canadian mainstream media disproportionally focus on black immigrant men criminally charged for not disclosing HIV status to their sexual partners when the majority of offenders are white, says a new study.

To mark World AIDS Day on Wednesday, a team of Canadian researchers released the pioneering study last week identifying “a clear pattern of racism” toward black men in the reporting of HIV non-disclosure in Canadian newspapers.

“The most striking revelation of this report was the grand scale of stereotyping and stigmatizing by Canadian media outlets in their sensationalistic coverage of HIV non-disclosure cases,” said Eric Mykhalovskiy, a York University sociology professor, who leads the team.

“It’s upsetting to read myths masquerading as news and repeating the theme of how black men living with HIV are hypersexual dangerous ‘others.’ This approach not only demeans journalism, but it inflames racism and HIV stigmatization, undermining educational and treatment efforts.”

Based on the database of Factiva, an English-language Canadian newspaper articles from 1989 to 2015, researchers from York, University of Toronto and Lakehead University identified 1,680 reports of HIV non-disclosure cases. Of those reports 68 per cent, or 1,141 of the articles, focused on racialized defendants.

According to court records of HIV-related criminal cases in Canada, African, Caribbean and black men living with HIV, the virus that causes AIDS, account for 20 per cent or 36 of the 181 people charged for these offenses. However, 62 per cent or 1,049 of the 1,680 media reports focused on these 20 per cent of the cases.

Immigrants and refugees receive particularly higher amount of coverage. While only 32 of the 181 accused are known to be migrants to Canada, yet stories about their offences represented 62 per cent (1,046 of 1,680) of the media coverage.

“The report documents the media’s stigmatizing and unjust racial profiling of black heterosexual immigrant men in HIV non-disclosure cases that perpetuates systematic discrimination,” said Christian Hui, an HIV activist and co-founder of the Canadian Positive People Network.

“We know next to nothing about them other than their name, age, residence, occupation, the charges they face,” said the report. “What is distinct about the coverage of African, Caribbean and black male defendants is how (they) are linked with racializing forms of representation in ways that amplify connections between HIV, criminality, race and ‘foreignness.’”

Mykhalovskiy said the research team recognized that accused criminals often refuse to speak with the media at their counsel’s advice, but it does not change the fact black immigrant offenders are disproportionally represented in the coverage.

The study urges the Canadian media to treat HIV non-disclosure as a health issue and not simply a crime story; to stop using mug shots that further stigmatizing and discriminate people with HIV as criminals; and to reach out to AIDS service organizations when interviewing sources for these stories.

Published in The Star, on Dec 1, 2016

Uganda: 5 months after filing their initial petition, activists renew their call to amend HIV law

Activists renew call for HIV law amendment

By Noah Jagwe

They argue that the law contains clauses that could deter all the benefits in the fight against the scourge.

According to this group, the law instead instills fear in communities about HIV disclosure and also fuels stigmatization.

Earlier this year, some 60 civil society organizations across the country challenged the criminalization of HIVin Uganda as well as other ‘harmful’ provisions in the Act.

Dora Kichoncho Musinguzi, the executive director Uganda Network on Law and Ethics, said the salient features that are scanned out in the law which they consider discriminatory are: Clauses 21, 41 and 43 of the Act that seek to criminalize HIV, particularly intentional transmission.

The Act would require mandatory disclosure of one’s HIV status, failure of which would be regarded as “criminal”, and attempting to or, intentionally transmitting the virus.

Failure to use a condom where one knows their HIV status would constitute a criminal offence, making them liable for prosecution.

The provisions in the HIV Act, according to Kichonco, do not only stigmatize and discriminate against people living with HIV, but also deter communities from seeking HIV services such as HIV testing and subsequently HIV treatment.

“It is five months since we filed the petition. The government has not responded to our case. This is procedurally wrong and negates justice,” she said.

Kichoncho said if the law continues “as we could see”, it would heighten stigmatization of people living with HIV and that many of the targets such as 90% of people knowing their status, 90% of those who with HIV are on treatment and 90% with suppressed viral load set by the country might not be achieved.

“The law has been counterproductive to all the achievements Uganda has made.”

She said the legal environment in Uganda is not conducive and human rights have not been respected. “Laws that criminalize and stigmatize people with HIV must be repealed.”

Meanwhile, Dorothy Nassolo, communications officer of Forum of People Living with HIV/Aids Networks in Uganda said there is a crisis the country might not stand.

She said a number of patients have been hacked to death because they have been discovered by their spouses for taking ARVs covertly.

National Forum of People Living with HIV/AIDS officer Milly Katana said the most affected group by the law are women through gender-based violence at home.

Katana said it’s better for Uganda to look at other alternatives for instance biomedical tools, medical male circumcision and condoms. –

Published in New Vision on Dec 1, 2016

HIV Criminalization: Masking Fear and Discrimination (Sero, US, 2016)

A short documentary for the Sero Project produced by Mark S King, written by Christopher King, and edited by Andrew Seger.

Social Science Update: Where criminalisation of sex work intersects with HIV criminalisation

In this article, authors Sienna Baskin, Aziza Ahmed, and Anna Forbes examine the interlocking webs of anti-prostitution laws and HIV criminalisation. Throughout the piece, the authors demonstrate critical research ethics by taking, as their starting point, the lives, freedom, and dignity of sex workers living with HIV.

Baskin et al. describe the ways in which, for sex workers, criminalisation is about so much more than the simple existence of laws. Instead, it is the particular policing and prosecutorial practices in a jurisdiction, based on the laws in place, that shape the lives of sex workers.

Similar to HIV-specific criminal laws, laws criminalising sex work are generally broadly written and arbitrarily enforced, enabling systemic discrimination and bias to turn into prosecutions of people of color and poor people.

The authors detail the consequences of arrest and prosecution that are frequently ignored in discussions of the criminal laws, including violence at the hands of police and fellow inmates, costly fees, possible loss of custody of one’s children, loss of employment and housing, and even loss of the right to sue police for violence that the police enact against sex workers in custody.

When HIV ‘exposure’ is also a crime in a state, then the legal penalties for sex work become even more harmful. If a sex worker is living with HIV, then she or he more often faces a felony rather than misdemeanor charge.

Using public health law mapping, the authors examine the US states that have HIV-specific criminal laws, laws criminalising sex work while living with HIV, and court-imposed mandatory HIV testing for people accused or convicted of sex work.

Baskin et al. find tremendous variety in the legislation from differences in when and how mandatory testing is conducted, to whom HIV test results are revealed, to how the results are used in court.

Of the approximately 32 U.S. states that criminalise HIV ‘exposure’, 14 have specific penalties for HIV-positive sex workers. Eleven states require mandatory HIV testing of sex workers and have enhanced sex work penalties for those living with HIV. Further, those prosecuted for sex work while living with HIV can be prosecuted under general (non HIV-specific) laws in any state.

To be prosecuted in eight states, sexual contact need never occur. People need only to be considered to be “loitering” or to make an offer for sexual services. In ten states, laws mandate testing of those prosecuted for sex work and provide enhanced penalties for those who engage in sex work who are living with HIV. In these states, any arrest after the first arrest (and related mandatory testing) leads to an almost automatic conviction. The HIV testing results become part of the person’s court files.

Noting that, 30 years into the HIV epidemic, there is no evidence that criminal law approaches have any positive effect on HIV prevention, the authors contend that criminalising sex work serves only to harm and discriminate against vulnerable populations and to perpetuate the HIV epidemic.

Details

Criminal Laws on Sex Work and HIV Transmission: Mapping the Laws, Considering the Consequences, by Sienna Baskin, Aziza Ahmed, and Anna Forbes (link to pdf download)

Denver Law Review, Volume 93:2, 355-388, Published: 2016

Social Science Update: Review of HIV criminalisation research in the US, 1990-2014

An article reviewing 15 years of U.S.-based social science research on HIV criminalisation was published in the September 2016 issue of AIDS and Behavior. The research team, led by Dini Harsono of Yale University’s Center for Interdisciplinary Research on AIDS (CIRA), Criminalization of HIV Exposure Work Group, described results from twenty-five research studies conducted in the US from 1990-2014. Studies were conducted with women and men living with HIV, gay men and other men who have sex with men (HIV-positive and –negative), public health workers, and medical providers.

Across the studies, the authors found that, while awareness of HIV exposure laws was generally low, attitudes were generally supportive of criminalisation.[1] The studies showed little to no relationship between the existence of laws and decisions to disclose one’s positive HIV status or to test for HIV. The clearest relationships between stigma and HIV non-disclosure laws could be found from the Sero Project study findings that people living with HIV expect to be treated with bias in the courts simply because of their HIV status. The authors call for future studies to pay more attention to health outcomes, rather than attitudes, and to more closely research prosecution and enforcement practices.

For a global overview of HIV criminalisation research, see O’Byrne et al. (2013). “HIV criminal prosecutions and public health: an examination of the empirical research.”

Details

Criminalization of HIV Exposure: A Review of Empirical Studies in the United States, by Dini Harsono, Carol L. Galletly, Elaine O’Keefe, Zita Lazzarini. AIDS Behavior. DOI 10.1007/s10461-016-1540-5. Published online: 7 Sept 2016.

[1] Although the Sero Project study (2012) was included in the research review, one key set of findings was not discussed. In the Sero Project study, support for criminalisation dramatically declined when survey respondents were provided additional response options (beyond only the choice to support criminalization or not) in survey questions.

Criminalization of HIV Exposure: A Review of Empirical Studies in the United States

Canada: New report explores mainstream Canadian newspaper coverage of HIV non-disclosure criminal cases, highlighting stigmatizing representations of African, Caribbean and Black men living with HIV

Abstract:

This report explores mainstream Canadian newspaper coverage of HIV non-disclosure criminal cases in Canada. It pays particular attention to how defendants’ race and immigration status figure into the newspaper representations of such cases. We empirically enquire into claims that African, Caribbean and Black (ACB) people living with HIV are negatively portrayed and overrepresented in Canadian newspaper stories about HIV non-disclosure cases. Our analysis is based on what, to our knowledge, is the largest data set of news coverage of the issue: a corpus of 1680 English-language Canadian newspaper articles about HIV non-disclosure criminal cases in Canada written between 1 January 1989 and 31 December 2015. Our quantitative and qualitative findings show that Canadian mainstream newspapers are a source of profoundly stigmatizing representations of ACB men living with HIV. For example, Black immigrant men living with HIV are dramatically overemphasized in Canadian mainstream newspaper stories about such cases. While these men account for only 15% of defendants charged they are the focus of 61% of newspaper coverage. Mainstream newspapers rely on forms of language that transfer a long history of exaggerated connections between criminality, race, sex, and otherness to the site of HIV. The result is that ACB men living with HIV are repeatedly represented as dangerous, hypersexual, foreigners who pose a threat to the health and safety of individuals (White women) and, more broadly, the imagined Canadian nation.

The report is available to download here

Czech Republic: Police drop charges against all 30 gay men living with HIV following Prague Public Health Authority ‘witch hunt’

All criminal charges have been dropped against the 30 gay men living with HIV who were reported to the police by the Prague Public Health Authority earlier this year after they were diagnosed with an STI, Czech media report today.

The draconian behaviour of Prague Public Health led to widespread condemnation by human rights defenders.

A change.org petition initated by the European AIDS Treament Group (EATG) was signed by more than 1000 supporters, including the HIV Justice Network.

Today’s media report in Aktuálně.cz notes that three of the 30 men had been indicted for potential HIV transmission (under a law criminalising ‘the spread of infectious human diseases‘) but prosecutorial authorities withdrew the charges due to lack of evidence.

Police spokesman, Jan Danek, told the paper that following an investigation there was no case to prove against any of the 30 men and all charges had been dropped.

Australia: Australian experts publish statement urging courts to consider current scientific evidence in criminal cases involving alleged HIV transmission or exposure

A group of leading HIV experts are calling for “caution to be exercised” when considering criminal charges against people who recklessly spread the disease.

In a consensus statement published in the Medical Journal of Australia, Australian researchers and scientists — including Professor Sharon Lewin and Professor Andrew Grulich — argue that “criminal cases involving HIV transmission or exposure require that courts correctly comprehend the rapidly evolving science of HIV transmission and the impact of an HIV diagnosis”.

The statement cites scientific evidence that shows the risk of HIV transmission to be negligible if a person is on treatment and has an undetectable viral load. It also claims that HIV isn’t as serious a condition as it used to be: “Most people with HIV are able to commence simple treatment providing them a normal and healthy life expectancy, largely comparable with their HIV-negative peers.”

“Given the limited risk of HIV transmission per sexual act and the limited long-term harms experienced by most people recently diagnosed with HIV, appropriate care should be taken before prosecutions are pursued,” says the statement.

While acknowledging that cases of deliberate transmission of HIV are “extremely unusual”, the group urge authorities to change behaviours through counselling rather than the courts.

“Careful attention should be paid to the best scientific evidence on HIV risk and harms, with consideration given to alternatives to prosecution, including public health management.”

The statement has been welcome by HIV advocacy groups.

“It’s incredible to see these experts come together and make a bold statement regarding HIV and the law,” said Richard Keane, President of Living Positive Victoria.

“The impact of HIV criminalisation or even the threat of it is a dangerous form of stigma and we’re still feeling the ripple effect more than two decades later.”

There have been at least 38 Australian criminal prosecutions for HIV sexual transmission or exposure since 1991.

“You don’t have to be convicted or even prosecuted for HIV criminalisation to affect you,” said Keane.

“The HIV community lives with the threat that a complaint can be made against us and the stigma that criminal prosecutions amplify and perpetuate.”

Keane hoped the statement’s focus on utilising the public health system rather the criminal courts in dealing with behaviour change would lead to better outcomes on policy.

“Most people on treatment are able to achieve an ‘undetectable’ viral load which makes it highly likely that the person will remain healthy and pose a negligible risk of transmitting HIV,” Keane said.

“The evidence outlined in this statement shows that the per-act risk of HIV transmission from even the most risky sex is still low. The message should be to encourage individuals to take care of their health and eliminate barriers to accessing treatment rather than intimidation through the justice system.

“By focusing on what the studies and science is telling us about treatments, relative risk and harm, that’s how we reduce HIV transmission whilst protecting the rights and dignity of people living with HIV. HIV is a health issue, not a criminal justice issue.”

Additional reporting Positive Living.

Published in Gay News Network on Nov 6, 2016