Watch all the videos of Beyond Blame @HIV2020 – our “perfectly executed…deftly curated, deeply informative” webshow

Earlier this month, advocates from all over the world came together for two hours to discuss the successes and challenges of the global movement to end HIV criminalisation.

All of the recordings of Beyond Blame: Challenging HIV Criminalisation for HIV JUSTICE WORLDWIDE are now available on the HIV Justice Network’s YouTube Channel.

“HUGE pleasure 2B at #BeyondBlame2020 conference – deftly curated, deeply informative; speakers were great; the passion & commitment to #HIVjustice was palpable. Much progress yet a sober reminder that the work is far from over.”

Kene Esom, Policy Specialist: Human Rights, Law and Gender, United Nations Development Programme (UNDP)

 

The full-length director’s cut version – with enhanced audio and video – is now available in English as well as with the audio track of the recorded simultaneous translation in French, Spanish, Russian, and Portuguese.

The English version is also available as a YouTube playlist in ‘bite-size’ chunks, with each segment of the webshow available as standalone videos.  This means, for example, if you just want to watch (or share) the segment on ‘women challenging HIV criminalisation in Africa‘, or on ‘bringing science to justice, and justice to science‘, it’s now possible.

“That webinar was perfectly executed. Great sound, engaging transitions (they actually played people on and off!), and multiple speakers in various collections. Having ALL OF THEM back at the end showed the breadth of this technical accomplishment and the depth of the speakers’ field of expertise. Not everyone may notice these things but boy, I sure do, and it was totally pro. I’ve seen big name conferences who couldn’t get this right… Congratulations all around, and especially to [director] Nicholas Feustel.

Mark S King, My Fabulous Disease

 

We have also made available for the first time the standalone recording of Edwin Cameron’s closing speech, which inspired so many.  The transcript is included in full below.

“We have been being battling this fight for many years. Since the start of the HIV epidemic we as gay men, as gay women, as queers, as transgender people, as sex workers, as people using drugs, have been persecuted by the criminal law. And I’m here to say, “Enough! Enough!

We have achieved a great deal with our movement, with the HIV Justice Network. We have achieved a great deal in conscientizing law makers, law givers and the public. It is now time for us to join in unison to demand the end of these stigmatising, retrograde, unproductive, hurtful, harmful laws.

It is a long struggle we’ve engaged in. And it’s one that has hurt many of us. Some of us here today, some of us listening in, some of us who have spoken, have felt the most brutal brush of the law. They have been imprisoned, unjustly prosecuted, unjustly convicted, and unjustly sent away.

HIV is not a crime. But there is more to it. Criminalising HIV, criminalising the transmission or exposure of HIV, as many countries on my own beautiful continent Africa do, is not just stupid and retrograde. It impedes the most important message of the HIV epidemic now, which is that this epidemic is manageable. I’ve been on antiretroviral treatment now for very nearly 23 years. My viral load has been undetectable for more than 20.

We can beat this, but we have to approach this issue as public health issue. We have to approach it rationally and sensibly, and without stigma, and without targeting people, and without seeking to hurt and marginalise people.We’ve made calamitous mistakes with the misapplication of the criminal law over the last hundred years, in the so-called ‘war on drugs’. We continue to make a calamitous mistake in Africa and elsewhere by misusing the criminal law against queer people like myself. We make a huge mistake by misusing the criminal law against people with HIV.

Let us rise today and say, “Enough!”

 

Proudly announcing HIV Justice Network’s Global Advisory Panel

Today, the HIV Justice Network is proud to announce our Global Advisory Panel (GAP), an international expert reference group of activists, lawyers and academics – more than half of whom are openly living with HIV – from all regions of the world who are working on ending  HIV and intersectional criminalisations.

Sarai Chisala-Tempelhoff, a Malawian human rights lawyer, says: “As an African woman and feminist who has been researching and exploring the interactions between law, HIV and women’s lives for almost two decades, being a member of the GAP feels like a fitting culmination of my life’s passions and goals: to keep bridging that gap between marginalised women’s lived realities and the laws that they live under.”

 

Members have been selected on the basis that they have specific skills, interests, and knowledge of the issues that we work on, and how this intersects with other social justice issues and movements.

Elie Balan, who works on LGBT rights in the Middle East / North Africa region says: “As a person living with HIV I have seen HIV criminalisation happen around me and to people I know, and to me it is a personal issue more than anything. I am excited to be part of the GAP to ensure such practices are ceased within my country and region.”

 

The GAP, co-ordinated by HJN team member, Julian Hows, has been convened to assist HJN deliver on its mission by:

  • Providing feedback on our current work, activities and outputs.
  • Being both a ‘critical friend’ as well as an ambassador for the ways that we are delivering on our mission, strategically and operationally.
  • Assisting us with building strategic alliances towards the common goal of ending HIV-related criminalisation around the world.

Alexander McClelland, a Canadian activist and social scientist living with HIV, says: “Being part of the GAP is vital to ensure we share globally what is happening in our respective countries, so we can learn strategies of resistance, and build a forceful collective response to help end practices of criminalisation.”

 

All members have indicated a willingness to serve for an initial period of two years (i.e. 1 January 2020 until 31 December 2021).  In fact, the GAP has met twice – virtually – since initally coming together in January 2020, including earlier this week where information was exchanged regarding the impact of the COVID-19 pandemic on HJN’s work, and in the countries, regions and constituents served by GAP members. 

Jeffry Acaba, who fights for the rights of people living with HIV in the Asia Pacific region: “HIV criminalisation continues to take place in many parts of the world and the platform that the GAP provides is vital to our collective effort to finally end this unjust and unfair policy practice. I’m honored to be contributing towards that change through the GAP.”

 

We very much welcome all of the GAP members, and look forward to working together to achieve HIV justice.

The current members of the Global Advisory Panel are:

  • Jeffry Acaba (ASIA PACIFIC)
  • Elie Ballan (MENA)
  • Edwin Cameron (AFRICA) 
  • Sarai Chisala-Tempelhoff (AFRICA)
  • Cecilia Chung (NORTH AMERICA)
  • Michaela Clayton (AFRICA)
  • Ann Fordham (EUROPE)
  • David Haerry (EUROPE)
  • Jules Kim (ASIA PACIFIC)
  • Ron MacInnis (NORTH AMERICA)
  • Allan Maleche (AFRICA)
  • Alexander McClelland (NORTH AMERICA)
  • Gennady Roschupkin (EECA)
  • Robert Suttle (NORTH AMERICA)

To read more about the individual members of the GAP – and their many achievements – please visit HJN’s dedicated GAP page.

Canada: Alexander McClelland’s looks at the lives of people who were criminalized due to alleged HIV non-disclosure

How HIV-positive LGBTQ2 people are criminalized in Canada

Three harrowing stories of HIV non-disclosure cases

From 2016 to 2019, Alexander McClelland, a researcher and Banting Postdoctoral Fellow at the University of Ottawa, spoke to 16 people across the country about their experience with Canada’s legal system and HIV non-disclosure laws. In Canada, those who do not disclose that they are HIV-positive to a sexual partner can face sexual assault charges, and if prosecuted, are mandated to appear on sexual offender registries.

Since 1989, more than 200 Canadians have been criminally prosecuted for HIV non-disclosure; in most of those cases, HIV was not transmitted, and many involve situations in which transmission was not possible—whether because their viral load was undetectable or because they used condoms. Despite reforms over the years, many HIV-positive folks remain vulnerable to criminalization.

The culmination of McClelland’s research is a new booklet, The Criminalization of HIV Non-Disclosure: Experiences of People Living with HIV in CanadaIn it, McClelland features interviews with nine Canadians who were criminalized for their HIV status. They are all recent cases, with the earliest stemming back to 2000 and the latest in 2015. Below are three of those stories.

Matteo: “They didn’t know what undetectable meant”

When I met him, Matteo was still under curfew as part of the conditions of his release. His parents were his sureties—he was mandated to live with them in the suburbs. A gay white man in his early 20s, Matteo was still in college, and only allowed out of his parents’ house to attend school for the day. He only recently found out his HIV-positive status. In fact, we met on the one-year anniversary of his diagnosis. He told me about how he had used hook-up applications like Grindr and Scruff. He met a guy that way, and they had sex.

Matteo did not tell the guy his status. He had been told by his doctor that since he was virally undetectable it was impossible for him to transmit HIV. Matteo concluded that he only had to disclose his status if there was a risk of transmission: “I thought if I was taking medication I didn’t have to disclose. Apparently, that is not the case.” A few weeks later, he was at work and the police came to arrest him. Matteo was arrested in front of his staff, coworkers and customers. “I felt really shitty, like I, like I had just robbed a liquor store,” he says. “They [the police] said, ‘You know why we are here. You are being charged and arrested.’

He ended up educating the detectives on the risk factors for transmission. Fundamentally, the police tasked with arresting Matteo did not know the current science behind the actual risks of HIV transmission. The police then released his picture, biometric details including his height, weight, eye and hair colour, any visible identifying marks, the charges filed against him, and his HIV-positive status. They also released a picture of Matteo as part of a public safety warning, asking his past sexual partners to come forward. The warning was widely covered in the media. As a result, it was also shared online, including on Facebook, targeting Matteo’s profile. One such negative post read, “If we still had the lash in Canada for punishment, this would be a case for its proper application.”

While talking at his place, Matteo told me more about what it was like to live under curfew at his parents’ house and the other conditions of his release. He felt constantly surveilled, isolated and depressed. He pulled out a piece of paper and read to me the more than 20 conditions of his release. Among the many conditions, he was barred from socializing in the gay community or going out to participate in social events. The condition that most bothered him was that he was mandated to contact authorities 24 hours before any potential sexual conduct, providing them with the name and contact information of the person. The police would then directly verify that the person knew Matteo’s HIV-positive status and that they consented to sex with him. “Like, who is going to want to do that? How am I going to meet anyone?” He felt extremely isolated and lonely.

Cynthia: “If I had not called the police, I would not have this charge hanging over my head”

I met Cynthia in her neighbourhood on the outskirts of a large Canadian urban centre. She told me about her move to Canada a few years earlier from a South American country. She felt that living as a transsexual woman in her home country was impossible. She feared that had she remained, she would have faced life-threatening violence.

Since moving to Canada, Cynthia had been working as a sex worker. She told me she generally had clients she liked, and she worked out of her home. She was warm and engaged when talking to me. In her late 30s, Cynthia was well-dressed and had a gentle demeanour. As we sat together drinking tea, she began telling me about how she was threatened with a charge of aggravated sexual assault. She was on anti-HIV medications, was undetectable and regularly used condoms with her clients. She knew that she was protecting them and also herself.

One of her regulars came over one night more intoxicated than was typical for him. He pulled a knife on Cynthia and raped her, holding the knife to her neck. He did not use a condom. She was terrified and called the police afterwards. During the police investigation, Cynthia told police about her HIV-positive status. Later, when speaking with the man who raped her, the police told him that he could press charges against Cynthia. She had previously not disclosed her status to the man, thinking that the use of a condom and being undetectable was more than sufficient. A few weeks later, she received a letter from a detective, stating that she was under investigation and they were considering pressing criminal charges of aggravated sexual assault. She was scared and didn’t know what to do. The man knew where she lived and had been violent toward her, and now she was potentially facing criminal charges. She told me that because she was a sex worker, her rape and assault were not being further pursued by the police. But now she was under threat of a charge of aggravated sexual assault for not disclosing her HIV status to her rapist.

After receiving the letter about the investigation from the authorities, Cynthia felt constantly surveilled, scared and worried. Moreover, now that he knew she was HIV-positive, the client who assaulted her began stalking and harassing her. She was terrified in her own neighbourhood, isolating herself and rarely venturing out. She deactivated her social media accounts because he also began posting messages, harassing her and her friends online. She was extremely fearful in her own neighbourhood but also scared to call the police again. “If I had not called them, I would not have this charge hanging over my head,” she says. She felt as though she was under constant watch, but with no means to protect herself. She knew the police were not going to help her and was worried she would face additional violence from her former client.

George: “This rape charge and HIV was worse than being a murderer in their eyes”

I met George in his apartment. He is a warm and gregarious white gay man in his late 50s, with a self-described long history of problematic prescription drug use, gambling and mental health issues. When George began a specific relationship around 10 years earlier, he initially did not tell his boyfriend about his HIV-positive status. At the time, he told me, he was himself uncertain about how HIV was transmitted. He told me that he was often depressed and in denial about aspects of his life. One day, a few months after his own diagnosis, George told me that his boyfriend came home with an HIV-positive test result from the clinic after a routine sexually transmitted infection screen. George then finally told his boyfriend his status in a letter: “There is a possibility that you may have gotten it from me, and I’m very deeply sorry for not disclosing [it to you].” His boyfriend went into a rage and went to police.

A few days later, he received a text message from his boyfriend that he was at the police station giving them his story. George immediately went to the station. “The next thing I knew, they were taking me into custody, and they said, ‘You have the right to call a lawyer,’ and they told me that ‘you are being arrested for sexual assault.’” George told me that a constable initially told him, “You’ve never had a criminal charge before. You will probably just have to stay overnight and tomorrow we’ll get your bail sorted.” But, a few hours later, the same constable came to see him and told him his charges had been elevated to attempted murder: “‘You aren’t going anywhere,’ she says, and she was right.” Due to the severity of the charge, George was denied bail even though he had no previous criminal record.

Due to the fear, shame and anxiety he experienced, George decided to plead guilty. He had never been incarcerated. The Crown Prosecutor asked for 10 years. George’s lawyer told George to plea, that he had no case because he had admitted his crimes. If he pleaded out, he would be sentenced to a lot less time incarcerated. He listened to his lawyer.

While incarcerated, George was placed in the general population with men facing all types of charges. He started facing verbal and physical harassment. Prisoners began calling him a rapist and asked why he took medication. After days of harassment, he was brutally assaulted by other prisoners. Those assaulting him said they knew he was trying to spread HIV. George said the guards watched and did nothing. (Under an institutional directive, prisoners’ charges and health status should remain confidential, and the only people with access to the information are guards.)

While in protective custody, George remained unsafe and was beaten again and again: “I went into the protective custody wing, and there are all kinds of sex offenders there and murderers and everything else like that. And when I got there, they found out my charge. So, they beat the shit out of me as well. I never fought a day in my life. I have never lifted a hand to anybody… I was on an isolated range for violent murderers and would still get harassed. You know, this rape charge and HIV was worse than being a murderer in their eyes.”

He told me that other sex offenders and murderers were left alone. But he was continually attacked for having HIV combined with a “dirty charge”—that is, aggravated sexual assault. One day, George was being harassed by another prisoner when a guard intervened. George told me he felt the guard had it out for him, and he was scared of the guard who had said demeaning things to him in the past. After the altercation with the other prisoner, George started to have a panic attack. While hyperventilating, that same guard forced George to strip naked and made him lay down on the cold concrete floor, holding him down on the floor with his boot. The guard pushed his boot into George’s chest hard and said, “I don’t touch anyone with AIDS,” as a nurse arrived to sedate George, sticking a syringe in his arm.

Ultimately, he served the rest of his sentence in administrative segregation, where he only had a concrete floor with no bed until night time. He was given just one sheet of paper and a pencil to occupy his time while locked down alone in a cell. He served approximately one year in those conditions.

Uganda: Recent case of woman, unjustly jailed for allegedly injecting a baby with HIV, highlights the need to act against HIV criminalisation

Woman Who was Wrongfully Jailed for Premeditated HIV Infection Speaks Out
“I spent two weeks in custody asking [to be released on bond], but they could not even bond me out, saying I was a non-resident. When we went to court, I asked for bail, and they refused. They refused to give me bail until they convicted me.”

By Kampala Post Reporter

On the evening of August 29, 2019, Sylvia Komuhangi walked out of the Gulu High Court premises accompanied by a female prisons security official. She had a smile plastered on her face. It was not a beaming smile. It was a restrained smile, the kind of smile that projects more relief than joy.

The 32-year-old secondary school teacher, who was wrongfully sentenced to two years in jail for injecting a baby with HIV-infected blood, walked a 50-meter stretch to the parking lot area where her lawyer, Immaculate Owomugisha waited. Komuhangi and Owomugisha shook hands, hugged and clasped their hands around each other’s waist for a while. The journalists present at court took pictures of the two, and then Owomugisha stepped back to let Komuhangi share her thoughts with the media.

With half a dozen video cameras and audio recorders in position, Komuhangi responded to the first question asking how it felt to regain her freedom after eight months in Kitgum Central prison, 805 kilometers away from her home in Rukungiri.

“I feel so happy,” she said. “It was so difficult.”

A Friendly Visit Gone Wrong

On December 27, 2018, Komuhangi was arrested and charged at Kitgum Magistrate’s Court with the offence of committing a “negligent act likely to spread disease contrary to Section 171 of the Penal Code Act of the Republic of Uganda.”

During her trial, at the Magistrate’s Court, the prosecution stated that at about 9 P.M. on December 26, 2018, Komuhangi carried the alleged victim away from her babysitter to the bedroom and then returned later, with the baby crying.

The prosecution continued that when the mother, Eunice Lakot, examined her baby, she found swellings in both armpits. She took the baby to Kitgum hospital for diagnosis, where doctors reportedly confirmed that the swellings were caused by injections. Consequently, a medical professional tested Komuhangi for HIV, and she was found positive. Next, the child was given Post-exposure Prophylaxis (PEP), an antiretroviral medication that prevents infection to anyone exposed to HIV during the first ninety-six hours. Subsequently, Komuhangi was arrested.

After regaining her freedom, Komuhangi narrated that she had traveled to Uganda’s northern region from the Kampala for a tour in late December 2018, and spent several nights at a friend’s house in Kitgum Town. After a visit to the Kidepo Valley National Park, she returned to Kitgum Town to find her friend’s home surrounded by local authorities. “We were arrested there and then,” she narrates.

“I spent two weeks in custody asking [to be released on bond], but they could not even bond me out, saying I was a non-resident. When we went to court, I asked for bail, and they refused. They refused to give me bail until they convicted me.”

The conviction was handed out by the Chief Magistrate of Kitgum, Hussein Nasur Ntalo, on Thursday, July 4th. On Komuhangi’s release, Lakot, the mother of the baby, shared that the most recent results showed that her baby is HIV negative. Lakot, nevertheless, said she was not happy with the High Court’s ruling, but the baby’s maternal grandmother, Rose Oryem, said they would not challenge the court’s decision.

Komuhangi’s story was covered by leading media houses in the country, including the Daily Monitor, the country’s leading independent media house. It caused a public uproar in a country whose laws make it a crime to “willfully and intentionally” transmit HIV and also give the legal right to medical staff to disclose a patient’s HIV status to others without his or her consent.

In fact, Komuhangi is not the first convict as a result of those laws. In 2014, a 64-year-old nurse in Kampala, Rosemary Namubiru, was accused of injecting a toddler with her HIV-positive blood in the process of administering treatment. Namubiru was put on trial amid pressure from several local and international organisations, including the Global Commission on HIV and the Law, who castigated the quality of the media reporting in the immediate aftermath of her arrest.

“The media engaged in unabashed and unverified sensationalism. Rosemary was branded a ‘killer,’ guilty of maliciously and intentionally attempting to transmit her own HIV infection to a child,” said the Commission’s statement.

“Subsequent to those allegations, the baseless rumour-mongering escalated: various news reports branded Rosemary a fiendish serial offender; a nurse who was mentally ill; a nurse without credentials…. Sadly, we’re convinced that the charge was originally laid because of the media frenzy,” added the statement.

Taking Action Against HIV Criminalization

When Komuhangi’s case hit the media headlines, it took a similar tone to that of Namubiru. As a result, it caught the eye of the Uganda Network on Ethics, Law and HIV/AIDS (UGANET), a non-governmental organisation whose goal is to advocate for the development and strengthening of an appropriate policy, legal human rights and ethical response to HIV/AIDS in Uganda.

Owomugisha, who is the UGANET head of advocacy and strategic litigation, says cases that involve HIV are not subjected to sufficient rigor, with sentiments often carrying the day at the expense of proper investigation, prosecution, and objectivity in court.

“Most convictions are based on unfair, inaccurate and overblown facts,” she says. “The media usually joins to hype up stories [and] this sensationalism crowds out good judgment, resulting in a miscarriage of justice.” Speaking particularly about Komuhangi’s case, Owomugisha said the media continued a pattern of HIV criminalization by condemning the suspect even before the initial trial.

“Several media houses were set on the loose name-calling such as “murderer and killer.” The media buzz was everywhere, including on the radio airwaves for days. This undressed Komuhangi of all dignity,” she said.

UGANET decided to offer legal representation to Komuhangi, resulting in a swift appeal against her conviction. Within two months from the first time the appeal was first lodged before the Gulu High Court, she had regained her freedom. Justice Stephen Mubiru, who handled the appeal, quashed the conviction, saying that forensic tests showed that DNA traces found on the cloth that Komuhangi used to wrap the baby belonged to her but did not contain any blood.

“I could not find any connection between her piece of cloth and the blood said to have been injected into the baby because the swelling found on the baby could have been a mere rash,” he added, according to a detailed report in the Daily Monitor newspaper.

Another of Komuhangi’s lawyers, Louis Odong, said the ruling sent a message to people who criminalize HIV victims not to engage in the practice while Owomugisha added that the court’s decisions had restored “dignity to Sylvia Komuhangi and many like her.”

“We commend the court decision for setting an example that if courts scratched below the surface news, they would realize HIV positive status alone does not equate to malicious intent,” she said.

The Executive Director of UGANET, Dora Kiconco Musinguzi, whose organisation works with 32 other HIV law and human rights groups, said the criminalization of people living with HIV, not only undermines the HIV response by compromising public health and human rights but that there is also no evidence of benefit from those laws.

“As a community of HIV actors, we remind the nation that we cannot end AIDS, or reach epidemic control with HIV criminalization coupled with heightened HIV discrimination. Human rights and dignity need to be accorded to all. We need to stop stigma and end HIV criminalization,” she stated.

Kiconco said that in light of court’s decision, the community of people living with HIV and organisations that UGANET works with recommend that the Constitutional Court should fast track the hearing of Petition No. 24 of 2016, through which their issues were presented to the country’s second-highest judicial organ for interpretation.

“More lives continue to be adversely affected by the HIV criminal law. Justice delayed is justice denied,” she added. Kiconco also called on Parliament to re-visit the HIV criminal laws with a view to law reform as “some of the laws are unfair, vague and will encourage trumped-up charges often.”

She said the law had been diverted from its original intent to create an environment where HIV is criminalized and where complications arise for persons living with HIV. The final appeal from Kiconco was directed to actors at all levels of the justice sector to increase rigor while handling HIV-related cases and to the media fraternity to exercise restraint while reporting on matters regarding the HIV criminal law.

“Our Constitution espouses a key principle – innocent until proven guilty. Abusing victims with names such as ‘monster and murderer’ is wrong. This jeopardizes their chance for a fair hearing,” she emphasized.

Canada: Justice Committee report recommends wide-ranging reforms to HIV criminalisation, including removing HIV non-disclosure from sexual assault law

Yesterday, the House of Commons Standing Committee of Justice and Human Rights released a ground-breaking report “The Criminalization of HIV Non-Disclosure in Canada” recommending that the Government of Canada works with each of the Canadian provinces and territories to end the use of sexual assault law to prosecute allegations of HIV non-disclosure.

According to a press release issued by our HIV JUSTICE WORLDWIDE partners, the Canadian HIV/AIDS Legal Network:

People living with HIV currently face imprisonment for aggravated sexual assault and a lifetime designation as a sex offender for not disclosing their HIV status to sexual partners, even in cases where there is little or even zero risk of transmission. This means a person engaging in consensual sex that causes no harm, and poses little or no risk of harm, can be prosecuted and convicted like a violent rapist. We welcome the Committee’s recognition of this unjust reality and their call to end the use of sexual assault laws. We and our allies have spent many years advocating for this critical change.

The report also recommends that Canada limits HIV criminalisation to actual transmission only. The Legal Network notes:

But we must go further: criminal prosecution should be limited to cases of intentional transmission as recommended by the UN’s expert health and human rights bodies. Parliament should heed such guidance. Criminal charges and punishments are the most serious of society’s tools; their use should be limited and a measure of last resort.

However, one of the recommendations that the Legal Network takes issue with is the recommendation to broaden any new law to include other infectious diseases.

Infectious diseases are a public health issue and should be treated as such. We strongly disagree with the recommendation to extend the criminal law to other infectious diseases. We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.

Currently, there is a patchwork of inconsistent approaches across each province and territory. Only three provinces — OntarioBritish Columbia and Alberta — have a formal policy in place or have directed Crown prosecutors to limit prosecutions of HIV non-disclosure, and they all fall short of putting an end to unjust prosecutions.

A December 2018 federal directive to limit HIV criminalisation, which solely applies to Canada’s territories, is already having some impact — in January 2019 it led to Crown prosecutors in the Northwest Territories dropping a wrongful sexual assault charge against a man living with HIV in Yellowstone. “We followed the directive and chose not to prosecute,” said Crown attorney Alex Godfrey.

Other positive recommendations in the report include:

  • An immediate review of the cases of all individuals who have been convicted for not disclosing their HIV status and who would not have been prosecuted under the new standards set out in the recommendations of the Committee.
  • These standards must reflect “the most recent medical science regarding HIV and its modes of transmission and the criminal law should only apply when there is actual transmission having regard to the realistic possibility of transmission. At this point of time, HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission.”
  • And, until a new law is drafted and enacted (which is only likely to happen if the current Liberal Government is re-elected in October), there should be implementation of a common prosecutorial directive across Canada to end criminal prosecutions of HIV non-disclosure, except in cases where there is actual transmission.

The report also recommends that any new legislation should be drafted in consultation with “all relevant stakeholders including the HIV/AIDS community”, which the Legal Network also welcomed.

The report is the result of a study of the ‘Criminalization of Non-Disclosure of HIV Status that ran between April and June 2019. Many Canadian experts testified as key witnesses to help MPs gain insight into why Canada’s current approach is wrong. HIV JUSTICE WORLDWIDE also submitted a brief to the committee, providing international context to Canada’s extremely severe approach to HIV non-disclosure.

The Legal Network concludes:

The next step is actual law reform. The report makes clear that change to the criminal law is needed. Any new legal regime must avoid the harms and stigma that have tainted the law these past 25 years.

US: Robert Suttle reflects on outdated HIV-specific criminalisation laws and the work of advocates to change them all over the US

by 
 
UNDER LOUISIANA LAW, YOU CAN WIND UP WITH A $5,000 FINE AND FIVE YEARS’ JAIL TIME IF SOMEONE COMES IN CONTACT WITH YOUR SPIT — IF YOU’RE HIV POSITIVE. THESE LAWS ARE BASED ON OUTDATED SCIENCE AND MULTIPLE ORGANIZATIONS ARE WORKING TO CHANGE THEM.

Whenever Robert Suttle thinks about his time in jail, his eyes go soft, he lets out a long breath and his lips purse a bit. It’s noticeable that he — after almost a decade — still gets emotional about what put him behind bars.

In 2008, while working as an assistant clerk for the Louisiana Court of Appeals, Suttle went through a bitter breakup that resulted in a tit-for-tat trial, ending in Suttle being sentenced to six months in jail and registering as a sex offender for intentionally exposing a sexual partner to HIV. But there was no transmission of the virus.

And even though Suttle says he disclosed his status to his partner and that the sex was consensual, it didn’t matter much under Louisiana’s HIV exposure law, which states that anyone with HIV or AIDS who has unprotected sex can be tried and charged with a nonviolent felony. Offenders can be sentenced to up to 10 years in prison and must register as a sex offender in some cases.

But Louisiana’s intentional HIV exposure statute, enacted in 1987, revised in 1993 and again in 2011, is out of date and not backed by science. For example, spitting and biting are considered grounds to be charged for criminal exposure to AIDS, even though it’s impossible to transfer the virus through spit and exceedingly rare for HIV to be passed on through biting (and the risk is nonexistent if the skin isn’t broken).  

What’s more, Suttle, who was diagnosed with HIV in 2002, couldn’t pass the virus on anyway. Antiretroviral treatment had made his viral load undetectable, which means the level of HIV in his blood was so low that it would’ve been impossible to transmit.

“I didn’t quite understand how it could come to this,” Suttle says. “It was being gay and HIV positive that led me to … being criminally liable.”

As more people become aware of possible criminal charges — thanks in part to local reporting on alleged offenders — some of those most at-risk are unwilling to get tested. Criminalizing one’s status has created a stigma, advocates say, which in turn can endanger whole communities.

“[People know] that if they test positive, they can get charged or arrested,” says Gina Brown, an HIV and AIDS activist in New Orleans who is HIV positive. “The laws need to change, and people in charge need to get educated.”

Across the nation, HIV transmissions have been steadily declining since the beginning of the decade. At the same time, the demographics of the disease have changed. No longer does HIV primarily affect gay men; today, those who are most at risk also include injection drug users and poor people of color, particularly in the South. Despite that shift, regulations and laws that criminalize one’s HIV status still abound, and they have roots in outdated science that has largely been debunked.

There are currently 26 states with HIV-specific criminalization laws, some of which penalize behavior regardless of whether the virus was actually transmitted. That number was higher in the 1980s and ’90s, when fear of HIV — and myths around how it spread — was rampant. Lawmakers claimed at the time that the statutes were meant to protect the general public. Instead, they have had the opposite effect: Since you can’t be prosecuted if you don’t know your status, there’s an incentive to not getting tested. Studies have also shown that HIV criminalization has little to no effect on deterring people from spreading the virus willingly, and in fact, such laws have only worsened its spread.

Nearly all of the states with the highest rates of new HIV diagnoses — in 2017, Louisiana ranked third — have HIV-specific exposure laws still on the books.

“People don’t know the collateral consequences,” says Suttle, who now works as an assistant director at Sero Project, a nonprofit that fights stigma and discrimination by focusing on HIV criminalization. “These laws hinder people from getting care.”

Suttle says the biggest obstacle is education, especially among people who still view HIV and AIDS as a death sentence.

“Education of the masses cannot be stressed enough. You can talk to anybody, and people honestly think that [people charged under HIV exposure laws] should be fully prosecuted and locked up,” Suttle says, adding that Sero Project has tried to humanize people living with HIV through anti-criminalization campaigns, lobbying and public outreach.

Sero Project is one of only a handful of national organizations — the Elizabeth Taylor AIDS Foundation and the Center for HIV Law and Policy are two others — that have been on the front lines of fighting against HIV criminalization.

This year, Sero Project, in partnership with the Positive Women’s Network, launched a training academy to teach advocates how to organize and repeal state HIV criminalization laws. In South Carolina, Sero Project’s training helped establish a coalition of 50 lawmakers, advocates and nonprofits to try and change the state’s HIV criminalization laws.

“They gave us the tools to do our own work here within our community, and educate people. Now we have more and more people who are interested, because every time we get out and share with the community, we’re getting more people asking about the laws,” says Stacy Jennings, chair of the Positive Women’s Network regional chapter in South Carolina. “It’s sad that [people living with HIV] don’t know [about the laws] because they should know. Every chance we get we’re teaching them.”

As a result of Sero Project’s efforts to get communities educated on local laws, Suttle has seen a sea change in the number of people coming forward to fight the stigma around being HIV positive.

And that’s been helpful in places like Louisiana, where advocates say the need for educating and empowering people to get tested and stay healthy is dire.

“We actually have been able to get into the offices of legislators and tell them why this law is outdated and plain wrong,” says Brown, the AIDS activist. “We have some of the highest rates of HIV transmission in the country, and that won’t get better so long as there are laws that actively make people fearful of getting tested.”

This is the third installment in NationSwell’s multimedia series “Positive in the South,” which explores the HIV crisis in the Southern U.S., and profiles the people and organizations working to alleviate it.

Published in NationSwell on December 22, 2018

Livestream: Beyond Blame – Challenging HIV Criminalisation: Rapporteurs and Closing (HJN, 2018)

Welcome to BEYOND BLAME – Challenging HIV Criminalisation, live from De Balie in Amsterdam, 23 July 2018.

15:4516:00 Rapporteur reports from the breakout sessions Lead rapporteur: Sally Cameron (HIV Justice Network)

16:0016:30 Group discussion: Next Steps Facilitators: Naina Khanna (Positive Women’s Network – USA) and Lynette Mabote (ARASA)

Livestream: Beyond Blame – Challenging HIV Criminalisation: Building Bridges Across Movements: Linking HIV Criminalisation With the Criminalisation of Abortion, Drug Use, Gender Expression, Sexuality and Sex Work (HJN, 2018)

Welcome by Luisa Cabal (UNAIDS) Moderator: Susana Fried (CREA and Global Health Justice Partnership) With: Ricki Kgositau (AIDS Accountability International), Oriana López Uribe (BALANCE / RESURJ), Nthabiseng Mokoena (ARASA), Niluka Perera (Youth Voices Count), Jaime Todd-Gher (Amnesty International), Kay Thi Win (Asia Pacific Network of Sex Workers)

Day With(out) Art 2018: ALTERNATE ENDINGS, ACTIVIST RISINGS (Mark S King, Sero, US, 2018)

A showcase of visual art and poetry made by advocates working against HIV criminalization at HINAC 3.

Mark S King’s film, produced for SERO, for Visual AIDS’ Day With(out) Art.

 

Livestream: HIV IS NOT A CRIME III National Training Academy: Closing Plenary (HJN, 2018)

HIV IS NOT A CRIME III National Training Academy Live from the Indiana University-Purdue University Indianapolis, 6 June 2018

Live stream hosted by Mark S King www.myfabulousdisease.com

This live stream was brought to you by HIV Justice Network www.hivjustice.net

Directed and produced by Nicholas Feustel

Running order (click on the time cues to jump there):

1) Pre-show with Mark S King and guests 00:08

2) Rapporteur session 03:48

3) Issues around the AIDS 2020 conference 13:30

4) State reports 16:17

5) Breaking news 40:14

6) Thank you’s 41:37

7) Chant 48:04

8) After show 49:59

Facilitated by Naina Khanna Positive Women’s Network – USA CALIFORNIA With Susan Mull Rapporteur PENNSYLVANIA and many, many others

Side show interviews with Sean Strub SERO Project PENNSYLVANIA and Edwin J Bernard HIV Justice Network UK