UNDP report looks at links between sex work, HIV and the law

New UN report takes a stark look at links between sex work, HIV and the law in Asia and the Pacific 18 October, Bangkok — Nearly all countries of Asia and the Pacific criminalize some aspects of sex work.

US: Public health experts and politicians support advocacy to modernise Iowa’s HIV law

Activism to modernise the unscientific, unjust and stigmatising HIV-specific criminal statute in Iowa is heating up. Last month, the Iowa HIV Community Planning Group voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalisation statute.

Next Monday, October 15th in the state capital, Des Moines, there will be another of a series of planned CHAIN/Sero Project community forums highlighting these efforts. All Iowa legislators within a 30 mile radius of Des Moines have been invited and Iowa Senator Matt McCoy (Democrat), who earlier this year introduced a bill to repeal and modernise the law, will be in attendance. Although the bill didn’t make it out of subcommittee, he plans to reintroduce another in the legislative session that begins in January.

HIV is not a crime: Monday 15 Oct, 6:30pm at the First Unitarian Church of Des Moines,1800 Bell Ave, Des Moines, Iowa.

Globegazzette.com covered the last community forum, held in Mason City in September, in their story, ‘Groups call for revising HIV disclosure statute.’

The state of Iowa currently has one of the strictest HIV laws in the nation, making the lack of disclosure a Class B felony, punishable by up to 25 years in prison and a lifetime of sex offender status.

The statute makes no exception for lack of transmission of the HIV virus, nor does it take into account the fact that a person infected with HIV is taking the prescribed medication and has very little or no chance of passing it on.

Gay rights groups and others, including the Iowa Department of Public Health, are calling for modernization of the 1998 statute to focus penalties only on intentional or documented transmission of the HIV virus.

They say Iowa’s law is having the unintended effect of discouraging individuals from undergoing HIV testing and from obtaining access to medications that could save their lives and the lives of everyone with whom they may have intimate contact.

Iowa, which has a relatively low HIV incidence rate, ranks second in the nation in prosecutions for nondisclosure.

Pictured Left to Right: Iowa State Representative Sharon Steckman and State Senator Amanda Ragan, CHAIN community organizer and Sero Advisory Board Member, Tami Haught leading Iowa’s campaign to modernize the HIV criminalization law and Sero Advisory Board Member and Activist, Nick Rhoades at a community forum in Mason City on Iowa’s HIV Criminalization Law on Monday, September 10, 2012.

(Picture courtesy of The Sero Project)

Reproduced below is the press release from CHAIN (Community HIV/Hepatitis Advocates of Iowa Network) announcing the Iowa HIV Community Planning Group vote and providing background to their advocacy.

HIV Community Planning Group Supports Repeal of Iowa HIV Criminlization Statute

Des Moines, September 25, 2012

In an historic move, the Iowa HIV Community Planning Group has voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalization statute.

Iowa, like most states, has a law that prohibits intentional transmission of communicable diseases. This statute, Iowa Code 139A.20 is part of public health code. HIV, however, is covered by a separate criminal code, Iowa Code 709C, which makes exposing someone to HIV without their consent a felony punishable by up to 25 years in prison. Repeal of 709C would allow HIV to be covered by the same public health code that governs other infectious diseases.

The National HIV/AIDS Strategy and the National Alliance of State and Territorial AIDS Directors has called for review of HIV criminalization statutes to bring them in line with contemporary science and knowledge about the real routes, risks, and consequences of HIV transmission. The Iowa Department of Public Health has echoed the call for review of the statute. In a letter to the editor of The Des Moines Register on July 29, Randy Mayer, Chief of the Bureau of HIV, STD, and Hepatitis, asked that HIV be treated in the same way as other serious infectious diseases.

“Testing and treatment are our best tools for fighting the epidemic in Iowa Research has now demonstrated that the statutes haven’t had the intended effect of promoting disclosure. We believe that our public health efforts will be more successful without having to fight the stigma that these statutes can create,” said Mayer.

“Having the prestige and expertise of the HIV Community Planning Group working to repeal Iowa’s criminalization statute is vitally important,” said Tami Haught, an HIV+ Nashua resident who is coordinating CHAIN’s statewide campaign to reform the Iowa statute. “The members of the CPG include some of the best-informed and most respected public health professionals and community advocates combating HIV We believe their recognition that the criminalization statute is hurting the public health will be persuasive with legislators.”

Iowa’s statute 709C imposes harsh penalties on persons with HIV who cannot prove they disclosed their HIV status in advance to sex partners. About 25 Iowans with HIV have been charged to date, with some convictions resulting in lengthy sentencing and lifetime sex offender registration requirements, even though HIV was not transmitted and there was little or no risk of it being transmitted.

The statute has been criticized by public health officials, legal experts, and patient advocates in Iowa and across the country as counter-productive, discriminatory, and contributing to further stigmatization of people with HIV. About 36 U.S. states and territories have HIV-specific criminal statutes Originally intended to slow HIV transmission, these laws were typically passed years ago when much less was known about HIV transmission A growing body of research shows how these statutes drive stigma, discourage testing, and are making the epidemic worse.

“HIV criminalization discourages people from getting tested—you can’t be prosecuted if you don’t know your HIV status—yet we know that most new infections are transmitted by people who have not yet gotten tested,” said Jordan Selha, co-chair of Iowa’s Community Planning Group “It’s time we treat HIV like other communicable diseases and use public health science rather than criminal law to guide our approaches to prevention No other disease is singled out as a criminal threat in this way.”

CHAIN has coordinated a statewide campaign to educate and mobilize communities to lobby lawmakers to review the statute when the legislature goes into session in January 2013. They have held community forums in Mason City and Ames.

You can help efforts to repeal the statute by contacting your state legislators and the governor’s office and asking that Iowa Code 709C be repealed. CHAIN will be holding an educational forum on October 15th at the First Unitarian Church of Des Moines and at Simpson College in Indianola on January 16, 2013.

The HIV Community Planning Group promotes, through an ongoing participatory process, effective HIV programming in Iowa in order to reduce the spread of HIV and to provide access to services for those infected. The Centers for Disease Control and Prevention (CDC) mandated community planning for HIV prevention in 1993. The process is designed to create a collaborative effort between public health and the communities they serve.

CHAIN is very excited to have the support of the Iowa HIV Community Planning Group. To join CHAIN’s listserve or get involved with CHAIN and the education and mobilization campaign, contact tami.haught2012(at)gmail.com, or follow CHAIN on Facebook.

Canada: Study finds HIV criminalisation creates uncertainty, fear, and vulnerability

Last week’s devastating ruling of the Supreme Court of Canada was quick to dismiss evidence that that HIV criminalisation was damaging to public health.

“The only ‘evidence’ was studies presented by interveners suggesting that criminalization ‘probably’ acts as a deterrent to HIV testing,” wrote Chief Justice McLachlin. “The conclusions in these studies are tentative and the studies were not placed in evidence and not tested by cross-examination. They fail to provide an adequate basis to justify judicial reversal of the accepted place of the criminal law in this domain.”

And yet a few weeks earlier, a Canadian study was published that highlights exactly how the criminalisation of HIV non-disclosure is damaging public health. It may not be possible to prove that it deters testing, but it certainly creates all kinds of problems for people living with, and at risk of, HIV.

The lead author of the study, How criminalization is affecting people living with HIV in Ontario is Professor Barry D. Adam, University Professor of Sociology at the University of Windsor, Ontario, and Senior Scientist and Director of Prevention Research at the Ontario HIV Treatment Network, Canada.

Download the report here

Drawing on results from the Ontario HIV Treatment Network Cohort Study, the Positive Places Healthy Places Cohort Study, and in-depth interviews with 122 HIV-positive people, the report examines how people living with HIV in Ontario perceive the law and the legal obligation to disclose their HIV-positive status to prospective sexual partners, as well as their perceptions of the changing public climate affected by the increasing prominence of criminal discourses applied to HIV.

The report shows how the criminal justice system and media coverage have created a climate of anxiety (though not all feel equally affected), affected views on when disclosure is (and is not) necessary, shaped messages from health professionals, and affected disclosure practices. The legal and media framing of HIV as a responsibility to disclose potentially undermines HIV prevention messaging and places ever greater numbers of people living with HIV in jeopardy.

Most study participants believed that disclosure of HIV-positive status should not be a legal requirement if protected sex is practiced. There was no significant variation in opinion by age, gender, sexual orientation, or ethnicity, but more educated respondents showed less punitive views.

The study’s primary finding is that that HIV criminalisation has unfairly shifted the burden of proof so that people living with HIV are held to be guilty until proven innocent and that:

People with HIV are now caught in a difficult he-said/(s)he-said situation of having to justify their actions;
disgruntled partners now have a legal weapon to wield against them regardless of the facts; and
the onus now falls on women whose male partners could ignore their wishes regarding safer sex.

In terms of general impact, many respondents reported a heightened sense of uncertainty, fear, or vulnerability, but others felt that the climate of acceptance is still better than in the early days of the epidemic, or that the prosecution of the high profile cases is justified and these people are giving all people with HIV a bad name.

To set the scene, in its introduction the report provides an extremely well-written exposition of why criminalisation HIV non-disclosure is problematic from a human rights, as well as a public health perspective. An edited version, below, provides you with a flavour of the insights.

The relationship between disclosure and HIV risk is complex at best… While some studies have found an association between disclosure and condom use, more have found no relationship…Disclosure poses a range of challenges in everyday social situations. The demand to disclose essentially requires HIV-positive people to place themselves in a situation to be rejected or stigmatized, a situation exacerbated in a climate of rising prosecution and media attention…

Ultimately reliance on disclosure makes sense as an HIV prevention measure only if both partners are certain of their serostatus, though epidemiologists point out that significant percentages of people who are HIV-positive do not know they are. In Canada, an estimated 26 percent of people infected with HIV are unaware of this fact. Indeed some researchers contend that transmission by those unaware of their infection accounts for a significant portion of new infections. Criminal prosecutions for non-disclosure encourage at-risk persons to rely on prospective sex partners to disclose their HIV status, if positive, and to assume that there is no or minimal risk in the absence of positive serostatus disclosure, evident in complainants’ testimony at trial in such cases. Serostatus disclosure laws may thus foster a false sense of security among HIV-negative persons who may default to forgoing safer sex unless notified of their partners’ HIV-positive status. Reliance on disclosure, then, is a shaky foundation for HIV avoidance. By absolving people of responsibility for practising safer sex, it may even increase vulnerability to infection.

Disclosure, then, is often challenging to accomplish in everyday life and the research evidence shows that disclosure is far from reliable as a method of avoiding HIV. The accumulation and consolidation of a body of legal doctrine that rests primarily on an obligation to disclose by those who know they are HIV-positive raises a number of problems in the pursuit of effective public policy in HIV prevention. There is, then, a need to test the presuppositions underlying the legal obligation to disclose as an HIV prevention strategy and to examine the real effects of criminalizing non-disclosure on people living with HIV.

Towards the end of the report, the authors discuss the impact of criminalisation of HIV non-disclosure on public health. Again an edited version, below, provides you with a flavour of the insights.

In Canada in recent years, the state has been shifting resources from social services to law enforcement… In HIV, the prosecutorial arm of the state has expanded while support for ASOs and for HIV prevention has become increasingly tenuous. The move on the part of some attorneys general to press for more punitive solutions to HIV prevention has many pitfalls and unintended consequences that amount, in the long run, to a public policy with poor prospects for meaningful reduction in HIV transmission combined with real damage to the lives and well-being of [people living with HIV]. Indeed obsessive focus on disclosure may create the conditions of accelerated transmission if people abandon safe sex in favour of disclosure as the preferred method of HIV avoidance…

Criminalization, whether minimal or expansive in punitive scope, has little potential to slow the advance of the HIV epidemic and has considerable potential to undermine prevention efforts currently under way….At the same time, increasing reliance on the criminal justice system to enforce a principle of universal disclosure of HIV-positive status, regardless of the likelihood of transmission, presses [people living with HIV] into an untenable double bind: they must place themselves into the risky position of heightening the possibility of rejection, stigmatization, and prosecution. Double binds can scarcely be the foundation for realistic public policy or consistent practice among [people living with HIV]. Only decriminalization and destigmatization would begin to create the conditions to make disclosure of sero-status safe. But perhaps more importantly, disclosure has been shown to be an unreliable method of reducing HIV transmission. Obscured by the criminalization debates is the fact that protected sex, especially in a situation where treatment has succeeded in attaining an undetectable viral load in the HIV-positive partner, continues to be a much more reliable method of avoiding HIV (as well as several other sexually transmitted infections).

It is interesting to note that the Supreme Court has, at least, recognised this last observation. However, the reality of the ruling is that it states very clearly that disclosure alone is enough to negate criminal liability (notwithstanding difficulties of proving that this occurred). It also very worringly undermines safer sex messaging by stating that condoms alone (or low viral load alone) are not ‘safe’ enough.

The study concludes with the following recommendations:

Among police and prosecutors to employ consistent evidence-informed principles in the laying of charges (i.e. by developing prosecutorial and police guidelines)
Among journalists to employ a rigorous decision-making matrix that strictly minimizes the publication of the identity of people living with HIV, and
In public health and AIDS service organisations to develop a consistent counseling policy that does not mistake universal disclosure for prevention but rather focuses on how best to engage the sexual cultures of at risk populations to advance safer sex practice.

HIV criminalisation activist Nick Rhoades writes about his life as a convicted sex offender

Nick Rhoades: “I had never cried the whole time I was in jail, prison or up to that point of my probation. But that day, I sat on the edge of the bed and sobbed … so far away from my friends and family.

Court's hiv clarification spurs troubling new questions

Sometimes a clarification just isn’t a clarification. Sometimes the “clarification” is no clearer than what it ostensibly clarifies, and sometimes it changes the meaning of what it claims to clarify. And sometimes it does both.

Sweden: Majority of MPs want to reform HIV disclosure obligation and ‘HIV exposure’ criminal liability

Two articles commemorating 30 years of HIV in Sweden in Svenska Dagbladet by journalist Tobias Brandel suggest that public – and political – opinion is being positively impacted by a two-year campaign by RFSU (the Swedish Association for Sexuality Education), HIV-Sweden, and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) to raise awareness and advocate against overly-broad HIV criminalisation.

The first article, with the headline, ‘HIV-positive convicted harsher in Sweden‘ focuses on the fact that although HIV has been transformed from a fatal to a chronic disease, more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and ’90s combined.

The second, with the headline, ‘HIV-law divides Government’ highlights the fact that a majority of MPs want to revise both the Communicable Diseases Act (with its ‘information obligation’) and the criminal law that currently allows prosecutions for people with HIV for potential or perceived HIV exposure as well as transmission. However, there are divisions within both the coalition Government and the leading opposition parties.

Since these articles are the most up to date descriptions of the current moves towards law and policy reform in Sweden, I am including (in English via Google translate, with slight amendments for clarity) the full text of both articles below.

This is the Google-translated version, read the original article here

When Joakim Berlin received his diagnosis, HIV was a death sentence.

“The big question my relatives asked was when I was going to die. Of course, I thought it would go pretty quickly,” he says.

It was 1991, five years before the arrival of antiretroviral drugs. Today he leads a “totally normal” life.

“Sometimes I get side effects such as cramps and fatigue. But HIV’s biggest impact has been on my social life. Human ignorance is problematic. The fear is still there.” Neither legislation nor case law has followed the progress of medicine. Although HIV has been transformed from a fatal to a chronic disease more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and ’90s combined. Anyone who has HIV – and knows it – and has unprotected sex with another person is at risk of prosecution for ‘aggravated assault’, ‘attempted aggravated assault’ or ‘creating danger’.

The last year has seen four such convictions in Sweden, according to a review by Svenska Dagbladet. All have resulted in prison sentences – even though they were not convicted of infecting their sexual partners. Only in one case was found to be HIV-positive plaintiff, but failed to clarify whether it was the offender who infected him.

A total of 44 people have convicted of crimes related to HIV since the late 1980s. This makes Sweden one of the countries in the world with the largest number of prosecutions in relation to the number of HIV-positive people, according to the Global Criminalisation Scan.

Sweden was also singled out as a bad example of how the law is used against people with HIV at the International AIDS Conference in Washington last summer. Even UNAIDS, the UN organisation for HIV / AIDS, criticises Sweden.

Ake Örtqvist, an infectious disease physician for Stockholm County Council, is critical of the Swedish court’s reasoning over risk and intent.

“The courts judge very differently which is very unfortunate. Courts and prosecutors should have an increased knowledge about the disease and the concept of risk,” he says.

Last year Denmark abolished a law that criminalises people with HIV referencing the current effective HIV drugs.

“The impact that treatment has in lowering viral load and infectiousness is very real, even if it is scientifically always hard to say zero. I think the courts reasoning is odd and they should embrace the fact that infection risk today is extremely small. One must ask whether it is reasonable to judge according to the Penal Code when the infection is well controlled and transmission has not occurred,” said Jan Albert, Professor of Infectious Disease at the Karolinska Institute. In other words, the virus is spread very rarely by “HIV-men” as the condemned is usually called in the media. The real vectors are people who do not know they have HIV and therefore do not receive treatment.

According to the Communicable Diseases Act HIV-positive individuals must inform their sex partners of their status before having sex. Although it is not possible to judge according to the Infectious Diseases Act so courts often refer to information obligations.

Both RFSL and RFSU argue that the law is actually counter-productive.

“Of course you should tell if you have HIV before sex, but you should not risk punishment if you fail to do so. Criminalisation can also lead to a false sense of security, to believe that the person who is not saying anything does not have HIV,” says RFSU President Kristina Ljungros.

She also believes that the prosecutions may deter people from testing. Even the UN-backed Global Commission on HIV and the Law concludes in a new report that criminalisation contributes to fewer people knowing their HIV status.

Preliminary data from a new U.S. study, received by Svenska Dagbladet, supports these ideas. The Sero Project, in collaboration with Eastern Michigan University interviewed more than 2000 HIV-positive individuals in the United States. Half of the respondents believe that it is reasonable to avoid HIV testing for fear of prosecution, and one in four say they know one or more individuals who chose not to test for fear of being prosecuted.

Joakim Berlin has lived with the virus for over 20 years and works at Positive Group West [part of HIV Sweden] as well as being a member of RFSL’s board.

“It is the responsibility of both parties to protect themselves, so you cannot have laws that criminalise only one party,” he said.

Is it not reasonable to tell your sexual partner so that he can make an informed decision?

“I have the responsibility to ensure that you do not get HIV, and you have the responsibility to ensure that you are not putting yourself at risk,” he says. “The law places full responsibility on the HIV-positive person while everyone else thinks that they can do whatever they want without consequences. Most people get HIV from someone who does not know their HIV-positive status.”

This is the Google-translated version, view the original here

Legislation and case law surrounding HIV has not kept pace with developments in medicine, as Svenska Dagbladet showed yesterday. Although modern HIV treatment reduces infectiousness dramatically, the law is the same as in the 1980s. There is now a majority in parliament who want a review of the Communicable Diseases Act, which forces people with HIV to disclose their status before having sex.

“We think that the issue should be revisited. Our knowledge about HIV is changing rapidly. We can not have laws that are outdated,” says Barbro Westerholm, Liberal Party social policy spokesperson.

As previously reported to Svenska Dagbladet both infectious disease doctors and scientists are critical of Swedish courts that sentence HIV-positive people to prison for unprotected sex, despite there being no alleged transmission. As well as revisiting the Communicable Diseases Act, the Liberal Party would like there to be a review of judicial practice.

The position of the Moderate Party is that there is no need for such a review, but the Party is now in discussion.

“We have not changed our minds, but we’re talking about it. It is clear that we must keep up with new facts and analyses. There is a debate,” says Mats Gerdau, a member of the social committee [which would recommend such a review to the Government].

The Centre Party is open to an amendment of the Penal Code in respect of how the courts reason about intentional and negligent [states of mind] – but they are clearly against removing the Communicable Diseases Act’s notification requirement.

“There is an information obligation for all diseases that are generally hazardous. It is completely illogical to say that it should be removed only for HIV,” says Anders W Jonsson, chairman of the social committee.

The Christian Democrats see no need for any kind of review. All four Alliance parties must agree before the law can be reviewed. The [opposition] Social Democrats, The Green Party and the Left are all clear that they want the information requirements to be removed for HIV.

“The law is counterproductive. It places responsibility solely on the person with HIV. It is a repressive law which, at worst, means people do not get tested,” says Eva Olofsson (Left), also a member of the social committee.

Agneta Luttropp (Greens), another member of the social committee, believes that the law creates a false sense of security.

“The responsibility to protect is on both sides, on both the person who may have HIV and the person who does not. We hope and believe that a change in the law could lead to people being more invested in having protected sex,” she says.

However, the Social Democrats want to keep the information obligation and do not believe that judicial practice needs to be reviewed.

US: Study finds criminalising alleged HIV non-disclosure an ineffective HIV prevention tool

A recent study published in the American Journal of Public Health by the leading US researcher into the impacts of HIV criminalisation, Carol Galletly J.D. and Ph.D., of the Center for AIDS Intervention Research at the Medical College of Wisconsin, has concluded that a New Jersey law requiring individuals with HIV to disclose their HIV-positive status to their sexual partners does not appear to be an effective HIV prevention intervention.

In the article ‘New Jersey’s HIV Exposure Law and the HIV-Related Attitudes, Beliefs, and Sexual and Seropositive Status Disclosure Behaviors of a Sample of Persons Living with HIV’, Galletly and colleagues surveyed 479 HIV-positive New Jersey residents between March and October 2010 about the New Jersey law that requires HIV-positive individuals to disclose their status to sexual partners.

N.J. Stat. Ann. § 2C: 34-5

A person is guilty of a crime of the third degree if, knowing that he or she is infected with HIV, he or she commits an act of sexual penetration without the informed consent of the other person.

The study found that the law does not seem to be effective as an HIV prevention tool. Although 51 percent of study participants reported knowledge of the law, there was no difference between those aware and unaware of the law in terms of HIV disclosure, risky sex, and condom use. In fact, most of the participants reported complying with the letter of the law for the previous year regardless of whether they were aware of the law or not.

Study abstract

An article by the CDC at thebody.com summarises additional findings on HIV-related stigma and perceptions of responsibility for HIV prevention.

Knowledge of the law was not associated with negative outcomes for HIV-infected study participants. Persons aware of the law did not report greater social hostility toward persons with HIV or experience more discomfort with HIV-status disclosure or more HIV-related stigma. On the other hand, those who were not aware of the law perceived more social hostility toward HIV-infected persons, experienced greater HIV-related stigma, and were less comfortable with HIV-status disclosure.

The 479 study participants, who were aged 19 to 66 years, were 45 percent female and were approximately 66 percent African American, 16 percent Hispanic, and 13 percent Caucasian. When the researchers questioned them about responsibility for HIV prevention, 90 percent believed that an HIV-infected person bore at least half of the responsibility for ensuring that their seronegative partners did not contract the disease through sex, and 34 percent felt the HIV-infected person had the full responsibility.

Given that there were no differences in behaviours or attitudes towards HIV disclosure, safer sex or responsibility for HIV prevention between those aware of the law or not, and the very high risk of human rights violations and miscarriages of justice in the application of HIV disclosure laws, the study’s findings strongly suggest that HIV-specific criminal statutes criminalising HIV non-disclosure without consideration of actual risk and harm, and proof of a suitably culpable state of mind are bad laws that should be repealed.

Change in Law on Epidemics will mean that HIV-positive individuals are not automatically criminals [in German]

HIV-Positive sind nicht automatisch Täter Das Parlament entschärft die Strafbarkeit bei Übertragungen von HIV. Die Aids-Hilfe Schweiz begrüsst den Entscheid, fordert aber eine weiter gehende Entkriminalisierung von Menschen mit HIV. Aids-Experten und Juristen kritisieren schon lange, dass das Strafrecht HIV-positive Menschen kriminalisiere.