Legalizing Stigma (In The Life Media, US, 2010)

More than 30 US states have laws criminalizing HIV exposure, transmission or non-disclosure of an individual’s HIV status. IN THE LIFE looks at the stigma and misinformation embedded in laws meant to curb the spread of the disease and the human cost among those who are HIV positive. Includes footage from the New York launch of the Positive Justice Project.

Global: Powerful personal testimony and video highlight criminalisation concerns

IPPF (the International Planned Parenthood Association) has been campaigning against the criminalisation of HIV non-disclosure, alleged exposure and non-intentional transmission for the past few years, and this World AIDS Day they are highlighting their ‘Criminalise Hate Not HIV’ Campaign.

They have produced a beautifully shot two minute video highlighting their ongoing campaign, which you can watch below.

IPPF has also just launched Behind Bars – a collection of interviews that highlights the effect criminal laws are having on people’s working and private lives. I was particularly struck by two testimonials from individuals with whom I have had some prior contact.

Jan Albert is a Professor of Infectious Diseases and has worked at the Swedish Institute for Infectious Disease Control (SMI). Currently he works as an HIV researcher at the Karolinska Institute. He has been an expert witness in several trials; served as the expert reviewer for the ‘Proof’ chapter of NAM’s HIV and the criminal law; and contributed to my recent aidsmap.com news story on phylogenetic analysis. He was forced to do an about-turn in 2008 regarding the SMI helping police with their criminal investigations.

Here’s an exerpts of what he says in Behind Bars

Since I’ve been an expert witness in court trials, my personal opinion regarding people living with HIV (PLHIV) has changed. In my experience the accused persons are seldom ‘raw criminals’.  Instead, they are people who have been careless or even reckless. There  are many reasons for neglecting to inform sexual partners about HIV status, including denial. None, or very few, have had the intent to transmit HIV which is how these acts often are described by the media….I’ve seen prejudice in the media reporting of these cases, but that’s  how the media works and I have learnt how to deal with it. They often  want the sensational and spectacular news, especially tabloids. I wished  there was place in the media for a more nuanced view; sometimes we see  it, but not very often…Do we want to turn a proportion of our population into potential criminals every time they have sex?

Marama Pala from New Zealand also tells her story on Behind Bars.  She had actually emailed me more than a year ago wanting to tell her story on my blog, and I was happy for her to do so.  I prepared a version of her email for her approval but never heard back (I had especially wanted to know how to credit her – using her real name or a psedunoym).  Now that IPPF have published her name and story, I’d like to post what she wrote for me, which is similar, but a little more detailed.

Marama Pala was the key witness for the prosecution when Kenyan musician Peter Mwai was prosecuted for criminal HIV transmission in 1993.  Now an advocate for Māori living with HIV, she writes about her experiences and lessons learned exclusively for this blog.

KEY WITNESS FOR THE PROSECUTION

I was 22 years old when I had a sexual liaison with Peter Mwai that changed my life forever (23 July 1993). It was six weeks later that I saw a picture of his face on the front of a national newspaper with the caption, “Face of Fear”.  The article encouraged anyone that had contact with Peter Mwai to ring a detective in the New Zealand police. The detective asked, if I received a HIV-positive blood test would I help stop him from infecting other women? Not knowing what I was volunteering for, I said yes. The trial took over two years.

This was the first time that legislation written in 1963 was put to the test with charging someone with ‘wilfully infecting someone with a disease’ (maximum sentence 14 years). It was when the prosecution was unable to prove beyond a doubt that Peter Mwai was deliberately infecting people that charge was lessened to Grievous Bodily Harm (maximum sentence 7 years).

It was alleged that Peter Mwai infected an array of women before June 1993, and after six women – negative and positive – came forward and spoke to the police, they were able to charge him with reckless endangerment. I was the only one they could find who was infected after June – the date where the prosecution were able to provide evidence that he had knowledge of his HIV status. I’ve met 9 women infected by Peter Mwai.  It is presumed there are many more.

I had the condoms available, and during negotiating for safe sex, I was told that he was negative, he had a healthy child, he was healthy and why would he need to wear one and they hurt…  I trusted him. Bear in mind that 1993, negotiating for safe sex as a woman in New Zealand was almost non-existent, safe sex education was non-existent, and the only reason I had the condoms was because a friend had given them to me.

The court trial began. There was no doubt in my mind, should he be released back in to New Zealand society, that he would continue with his promiscuity, putting others at risk. He was found guilty.  He served five years in prison, was deported on release, and shortly after died in Uganda of TB.

RETHINKING CRIMINALISATION


I went in to hiding until 2005 due to unwanted and degrading media interference. It was when the situation within my ethnic community (Indigenous New Zealander Māori), was being threatened by HIV, that I became an advocate for Māori. We started a non-profit organisation called INA (Māori, Indigenous & South Pacific) HIV/AIDS Foundation.

On reflection, and spending time in the Pacific Islands reviewing the criminalisation of HIV in Papua New Guinea (my husband’s country) – first Pacific country to have HIV specific legislation – I began to recognise that the hyper-emotive ‘knee jerk’ reaction and subsequent dramas during the trial may have been a ‘tad’ heavy handed.

I started to become aware of how the criminalisation of HIV can cause stigma and discrimination for those living with HIV.  I then started to notice the differences that criminal law had on different cultural backgrounds, producing varied levels of severe to mild discrimination.  I also saw the agendas of all those who have a stake in this type of legislation. I’ve found the entire area to be a political minefield.  Whose rights are we wanting to protect? The rights of negative people wanting to be safe from infection? Or the rights of positive people to be protected from stigma and discrimination? It’s been said that the sway of the pendulum will always politically favour the majority. In Papua New Guinea’s HIV laws, they do have clauses for both sides: reckless infection of others, and discrimination of PLHWA.

INA has a philosophy that we are all responsible for HIV, and when all take responsibility, the fight will be won! Negative/Positive all have equal responsibility for HIV. HIV is an individual and public health concern.

In saying that, our women and men (Māori) have difficulty in negotiating safer sex and consensual sex. We have no programmes available to target either behavioural changes. Safer sex education is also lacking for all ages within cultural demographics. Sensitivity to cultural laws and beliefs on sex are not considered at all.

I’ve been quoted before saying that perhaps counselling and therapy would have been an option for Peter Mwai. Perhaps name, blame and shame, is not the best management of someone who puts others at risk.

I now believe that New Zealand’s criminal law is an ineffective and inappropriate tool used to address HIV risk behaviour. The psychological and mental state of a person who puts others at risk is not addressed in criminal law. Punishing them may have the opposite effect.  PLWHA are living longer with medication: would prison create a more calculating person that would be released eventually and continue to act with reckless disregard? There is no evidence to suggest that incarceration will offer any significant benefits in changing behaviours.

Criminal charges do little to stop the spread of HIV, within some cultures it dissuades people from being tested, having an attitude of ‘ignorance is bliss’, then they can’t be charged or fear of a positive test resulting in cultural violence, stigma and discrimination. Criminal charges do, however, divert resources and attention away from prevention initiatives already in place that are having an impact on reducing HIV transmission.

Most PLWHAs take responsibility for their bodies and their virus, practicing safer sex and disclosing to partners when necessary. I reiterate, it’s everybody’s responsibility to reduce exposure to any STI. Criminalising HIV puts the entire onus and responsibility on the PLWHA.

INFLUENCING NEW ZEALAND POLICY

My organisation, INA, would also like to acknowledge that ‘wilful’ or ‘reckless’ HIV infection continues to be an issue in New Zealand, with no criminal charges or spotlight placed on it in some communities. The cases mentioned above all involved women, with the most recent cases involving both men and women.  Sadly amongst our Men who have sex with men community, the prevention message targeting them the most as ‘High Risk’ has also created an acceptance of balancing the risk and life style. With many transmission of HIV being completely hidden with an acceptance attitude.

Mental illness, significant cognitive and/or psychological impairment, or a reasonable apprehension of harm adds to the compounding situation, with criminal charges doing nothing to respond to this reality or prevent further infection in such circumstances.

There has been no National Review of HIV in New Zealand, giving us a factual ‘picture’ of the situation in New Zealand. Even with recent criminal charges, there has been no directive on assessing the situation.  The complexities (homophobia, sexism, racism, stigma and discrimination) are being ignored and ‘panic’ is motivating decisions. That may be irreversible should these decisions become policy. All legal and policy responses would be best based on the best available evidence, HIV prevention, care, treatment, support and respect for human rights.

We support and advocate for a strong national policy response to HIV prevention and transmission.  We support a National Review of present criminal law in relation to HIV and review of support services available. And the exploration and development of alternatives to criminal charges and HIV, incorporating alternative responses addressing the individual, environment and social contexts involved.

US: Positive Justice Project publishes essential new advocacy resource

The Center for HIV Law and Policy has released the first comprehensive analysis of HIV-specific criminal laws and prosecutions in the United States. The publication, Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions, covers policies and cases in all fifty states, the military, federal prisons and U.S. territories.

Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions is intended as a resource for lawyers and community advocates on the laws, cases, and trends that define HIV criminalization in the United States. Thirty-four states and two U.S. territories have HIV-specific criminal statutes and thirty-six states have reported proceedings in which HIV-positive people have been arrested and/or prosecuted for consensual sex, biting, and spitting. At least eighty such prosecutions have occurred in the last two years alone.

People are being imprisoned for decades, and in many cases have to register as sex offenders, as a consequence of exaggerated fears about HIV. Most of these cases involve consensual sex or conduct such as spitting and biting that has only a remote possibility of HIV exposure. For example, a number of states have laws that make it a felony for someone who has had a positive HIV test to spit on or touch another person with blood or saliva. Some examples of recent prosecutions discussed in CHLP’s manual include:

• A man with HIV in Texas is serving thirty-five years for spitting at a police officer;

• A man with HIV in Iowa, who had an undetectable viral load, received a twenty-five year sentence after a one-time sexual encounter during which he used a condom; his sentence was suspended, but he had to register as a sex-offender and is not allowed unsupervised contact with his nieces, nephews and other young children;

• A woman with HIV in Georgia received an eight-year sentence for failing to disclose her HIV status, despite the trial testimony of two witnesses that her sexual partner was aware of her HIV positive status;

• A man with HIV in Michigan was charged under the state’s anti-terrorism statute with possession of a “biological weapon” after he allegedly bit his neighbor.

The catalog of state and federal laws and cases is the first volume of a multi-part manual that CHLP’s Positive Justice Project is developing for legal and community advocates. The goal of the Positive Justice Project is to bring an end to laws and policies that subject people with HIV to arrest and increased punishment on the basis of gross ignorance about the nature and transmission of HIV, without consideration of the actual risks of HIV exposure.

The manual’s completion was supported by grants for CHLP’s anti-criminalization work and Positive Justice Project from the MAC AIDS Fund and Broadway Cares/Equity Fights AIDS.

Download the manual here (2.3MB)

Opinion: I Am HIV Positive and I Don’t Blame Anybody—Including Myself

A few months ago, I received an email from a young researcher and activist living with HIV.  Kirk Grisham said some very nice things about my work, and told me that I had inspired him to both write about the issues behind criminalisation, as well as to ‘come out’ publically about his HIV status.

The result is this fantastic analysis for ColorLines around personal responsibility for HIV prevention that really expresses many of my own thoughts on the issue, but in a much more accessible way than I could have ever achieved.

Kirk concludes that for him, criminalisation means that

I bore no responsibility for the epidemic, until I had HIV, when it became entirely my problem.

I’m including the opening paragraph here.  Click on the link to read the entire article at ColorLines.

I am HIV positive, and I don’t blame anybody for it—not myself or anybody else.

He didn’t rape me and he did not trick me. It was through our unprotected sex that I became HIV positive. Since seroconverting, I have been very conscious of the language I use to discuss transmission, particularly my own. To say “he gave me HIV” obscures the truth, it was through a mutual act, consensual sex, that I became HIV positive. When speaking to him a couple months after my diagnosis I gathered that he knew he was positive when we had sex. But that is beside the point; my sexual health is mine to control, not his.

Read the entire article at ColorLines.

Ukraine: Revised HIV law may no longer mandate disclosure

A new version of Ukraine’s HIV-specific law, adopted by the Ukrainian Parliament in its first hearing on 21 October, promises several positive changes, including removal of the statute mandating disclosure of known HIV-positive status prior to any activity that may risk exposure.

According to a press release from the International AIDS Society, the following changes will be implemented:

  • People living with HIV will no longer be barred from entering, staying or seeking residence in Ukraine based solely on HIV positive status;
  • NGOs providing HIV treatment, prevention and care services will have the right to apply for state contracts
  • People living with HIV will have the right to seek compensation for the unlawful disclosure of their HIV status
  • HIV-positive injecting drug users (IDUs) and other IDUs will have the right to receive Opioid Substitution Therapy (OST)
  • People living with HIV will be encouraged to disclose information about the risk of HIV transmission, however they will no longer be required by law to disclose their status to partners

WHO Europe notes

The revised law is the result of two years intensive and collaborative work, including the involvement of non-governmental sector, especially All-Ukrainian Network of People living with HIV, the support from the USAID-funded HIV/AIDS Service Capacity Project in Ukraine and the United Nations Team Group on HIV/AIDS. The change would not have been successful without a close collaboration with the Parliamentarian Committee on Public Health and its chair Dr Tatyana Bakhteeva who was very much committed to the issue.

Dr Volodymyr Kurpita, Executive Director of All-Ukrainian Network of People living with HIV told me in an email that since the final version of the revised Prevention of AIDS and Social Protection of Population Act is still awaiting parliamentary approval in the second hearing, the final wording of the law on HIV disclosure is still not known, but “we can highlight it is more progressive and less restrictive as previous one.”  

In Ukraine, newly diagnosed individuals must undergo a period of mandatory hospitalisation during which it is expected that they will sign an undertaking to obey this 1998 disclosure law. The reckless or intentional “conscious exposing to danger of infection [HIV exposure], or infection [HIV transmission]” is also subject to prosecution, with a maximum penalty of ten years’ imprisonment. There have been at least six prosecutions and four convictions under these laws.

US: Sean Strub blogs on why tackling criminalisation is crucial

POZ magazine founder, fellow anti-criminalisation advocate – and friend – Sean Strub, recently joined forces with the incredible Catherine Hanssens and her amazing team at the Centre for HIV Law & Policy to launch the Positive Justice Project.

In his latest blog post at POZ.com, Criminalization 101, he explains why the criminalisation of non-disclosure, exposure and non-intentional transmission has become one of the most pressing issues of our time.

I’m including his introduction here.  Read the entire post at POZ.com.

Over the last several years, as I’ve talked to a wider circle of advocates, people with HIV and policy leaders about HIV criminalization, it has become apparent to me that many people are not well-informed on the topic. Some instinctively favor prosecuting people with HIV for not disclosing their HIV status prior to intimate contact, but these opinions usually evolve quickly as a person learns more about the issue.

Here’s a background piece I have been using–and continuing to modify–to introduce the issue to others. It is a bit lengthy for a blog post. If you would like a footnoted and properly formatted version emailed to you, just shoot me a note at sstrub (at) hivlawanndpolicy.org. I look forward to any comments or suggestions.

(Read more at POZ.com)

South Africa: Opposition leader Helen Zille says HIV exposure is ‘attempted murder’, cites Nadja Benaissa case as example

South Africa’s leader of the Democratic Alliance opposition party, Western Cape Premier Helen Zille has said that HIV-positive people who knowingly have unprotected sex without disclosing their status, should be charged with attempted murder. She also cited the recent case of German pop star, Nadja Benaissa, as an example for South Africa to follow.

Her remarks, reported in the Cape Times, were made during an address to the South African Institute of International Affairs last week.

She said the lack of personal responsibility contributed to some of the greatest social ills in the country.

“Social pathologies are complex, but I think we must all agree that promoting a culture of personal responsibility is essential to addressing all these things. We also need to take action against people who are HIV-positive and knowingly have unprotected sex without disclosing their status. This, I believe, is an offence on a par with attempted murder. This is complex and difficult, and requires enormous courage from the wronged sexual partner to lay a charge and give evidence,” Zille said.

[…]

Zille said the recent court case against a German pop star for failing to disclose her HIV-positive status was an example to emulate. German singer Nadja Benaissa, a member of No Angels, was found guilty of causing grievous bodily harm to her ex-boyfriend by having unprotected sex with him despite knowing she had HIV. The 28-year-old was given a two-year suspended prison sentence and 300 hours’ community service. Zille said the lack of personal responsibility contributed to some of the greatest social problems facing the country, such as HIV/Aids, alcoholism, drug abuse, teenage pregnancy, foetal alcohol syndrome, and absentee fathers who did not pay maintenance.

In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law. It concluded that “an HIV-specific statutory offence/s will have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence/s are not justified; and an HIV-specific statutory offence/s will infringe the right to privacy to an extent that is not justified.”

A 2003 Criminal Law Amendment Bill sought to define non-disclosure of HIV status prior to otherwise consensual sex as rape, but that definition was not included in the version of the bill ultimately approved in 2007. Rather, the legislation requires HIV-antibody testing for suspected rapists and allows for longer prison sentences for rapists found to be HIV-positive.