Louis Gay describes his experiences with HIV criminalisation in Norway
Louis Gay, 40, presents his personal experiences with HIV criminalisation to the Civil Society Caucus on HIV Criminalisation in Oslo on 13th February 2012.
This pre-meeting to the UNAIDS High Level Policy Consultation on the Science and Law of Criminalisation of HIV Non-disclosure, Exposure and Transmission also produced the Oslo Declaration on HIV Criminalisation: hivjustice.net/oslo
Advocates working to end inappropriate criminal prosecutions for HIV non-disclosure, potential exposure and non-intentional transmission from around the world explain why they support the Oslo Declaration on HIV Criminalisation.
Public television stations across the United States aired Perpetuating Stigma, an episode from the award-winning documentary series In The Life, in February 2012. This special report investigates the injustices that arise when a person’s HIV status becomes a crime, with a focus on how women have been stigmatized and prosecuted under these laws.
Perpetuating Stigma features HIV positive women whose personal stories challenge the theory behind HIV criminalization laws and expose the reality of their impact.
“In The Life’s decision to continue coverage of HIV criminalization, specifically with a report on women, is motivated by the lack of a fair media perspective on this issue,” stated Michelle Kristel, executive director of In The Life Media.
Voices from the Field: How Laws and Policies Affect HIV Responses
Delivered at the 29th meeting in December 2011, UNAIDS PCB NGO Delegation’s 2011 Report focuses on the importance of the legal environment to national HIV responses. For its findings, the NGO Delegation conducted a series of 27 focus groups, involving more than 240 participants from every region of the world.
This video, produced by István Gábor Takács of the Hungarian Civil Liberties Union, highlights the report’s key findings and recommendations to the Joint United Nations Programme on HIV/AIDS (UNAIDS) board and its Member States with regards to HIV strategies and related laws and policies.
This short film is part of Sero’s ongoing documentation of the experiences of people with HIV who have been prosecuted for “HIV crimes”. To see a growing collection of individual interviews please visit Sero’s video page.
A total of 65 participants from 15 countries discussed and debated region-wide experiences of enabling and restrictive legal and social environments faced by people living with HIV, other key populations and those affected by HIV in high income countries.
Since high income countries have accounted for the vast majority of criminal prosecutions relating to HIV non-disclosure, exposure or transmission, this video focuses on the part of the dialogue that heard testimony from policymakers, community advocates and experts from the Global Commission specifically on this issue.
The Regional Dialogue, hosted by the Global Commission on HIV and the Law, was jointly organized by UNDP, on behalf of the UNAIDS family, and the University of California, Berkeley Law, The Miller Institute for Global Challenges and the Law.
This short film produced by The International Planned Parenthood Federation is a commentary from a selection of experts about the criminalisation of HIV transmission in England and Wales. It brings together a selection of policy makers, programmers, advocates, academics and people living with HIV to inform the public debate.
Tell your story – how are you impacted by HIV criminalisation?
Understanding the unintended impacts of the criminalisation of HIV exposure or transmission – way beyond the relatively few individuals who are accused, arrested and/or prosecuted – can play a crucial part in advocating against such laws and prosecutions.
Over the next few months, there are going to be multiple opportunities to highlight issues such as:
Creating fear and confusion about relying on disclosure to prevent HIV risk, and when disclosure is legally necessary
Making it harder for people living with HIV who are having problems maintaining safer sex to talk with healthcare workers due to fear of prosecution
Increasing HIV-related stigma
Creating a false sense that HIV is someone else’s problem, rather than a shared responsibility
Providing an additional disincentive for people to learn their HIV status
These opportunities will arise via the Global Commission on HIV and Law’s High Income Country Dialogue that will take place in Oakland, California on 16-17 September (click here for more details); the UNAIDS Programme Coordinating Board meeting focusing on HIV and Enabling Legal Environments that will take place in Geneva, Switzerland on 13-15 December; and through an ongoing project by IPPF, Behind Bars, that highlights a wide range of personal testimonies about the impact of HIV criminalisation.
I’m hoping that blog readers will help me collate personal testimonies about the impact of HIV criminalisation on their own lives. You don’t have to be an HIV professional or have been involved in a case to have been impacted (although such testimonies are very welcome).
As the example I’m about to show you illustrates, you can simply live in fear of the law because you are living with HIV.
I’m more than happy to receive testimonies from all over the world, but right now – because I am in the middle of producing a report about the impact of HIV criminalisation in Europe for the Global Commission on HIV and the Law – I’m especially looking for testimonies from Europe.
If you have a story to share, you can either paste it into the comment box or send it to me at yourstory(at)edwinjbernard.com. Some stories that I receive may be included in my Global Commission submission, and included in IPPF’s Behind Bars collection, and all will be highlighted on my blog. Submissions can be anonymous (but I will require some evidence of authenticity), and if you do use your real name, please indicate whether it can be used in full or not.
Paragraph 155 of the Norwegian Penal Code, an infectious-disease law enacted in 1902, essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status and consents, and irregardless of viral load or a desire by a couple to conceive. Both ‘willful’ and ‘negligent’ exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for ‘willful’ exposure or transmission and three years for ‘negligent’ exposure or transmission.
Paragraph 155 – and a story from a partially unlived life
In my teens I turned off my sexuality. Even as my hormones were reaching boiling point, I managed to shut down. I felt that my desires were wrong, and I am a strong-minded person. In my twenties, I told my family and friends that I was gay. I began to have sex carefully, but I was never in any relationship.
When I reached 30, and after some therapy, I began to feel ready to try enter into a relationship. In January 2000 I took the HIV test, together with my best friend, since it was the “millennium change.” My test turned out to be HIV-positive, and the shock was devastating. I was very far from having a wild sex life – it was just very bad luck. Like many other HIV-positive persons, I later came to understand what my doctor told me following diagnosis: “You are going to be fine. HIV is no longer a death sentence.” The words were a great comfort. I still had so much unlived life in me.
Life with HIV was difficult at first, but slowly I came to accept the new situation, the same way I had earlier come to accept my sexual orientation. But because of Article 155 must I, as a virile, and still fairly young man, now live like a monk – an asexual monk? What kind of life will that be? Would I be able to live like that?
Last time I had sex was some months ago. I was dating a nice guy I was attracted to, and we were at his place. Sweet music was playing. I lied and said I did not have the energy to have sex after my gym work out, but that I would like a massage instead. I got the massage. A very nice massage. The atmosphere got hot. I felt both excited and uneasy. He said he wanted to have sex with me. I said no. We continued with massage and kissing for a while. “Just a little?” He asked again. I gave in. We began to have sex. We got a condom and lubricant ready. Then the thought hit me hard, like a powerful wave. What if the condom bursts? It could happen, even if it is very unlikely. “Exposure to potential risk,” says the HIV Paragraph.
Although I hadn’t told him myself, I knew that he knew a guy who knows that I am HIV-positive, someone I met at a seminar for HIV-positive people some years before. But I did not know this guy well, and I share my diagnosis only with people I have known for a long time, and trust, like friends and family. What if he tells his friend about this incident? Perhaps his friend would guess who I am and say, was his name xxxx? ‘Ah yes, he has HIV, like me!’ What if he then calls the police? Reports me? What if the police comes to my home? Brings me in for interrogation, and puts me in a prison cell? What about my important meeting next week? Mum will be crushed if I go to jail. For having sex.
I pulled away. I used the oldest excuse in the book: headache. And low blood sugar. I put on my clothes and left. I never called him again. I have thought about him several times.
I will not be able to live my life without sex. I’m not a big fan of the word injustice. Nature is not fair. But Paragraph 155 criminalises me for wanting to live a full life – and that includes a sex life. Me – who has studied law just because everyone said I was always so fair and wise.
I feel like a victim, even though I often criticise the role of the victim. A victim of this discriminatory law that criminalises the sexuality of people affected by HIV. A victim of prejudice related to HIV, which few seem to bother to care about. Norwegian society likes its scapegoats. I want to remove the criminalisation of sexuality in Norway. I want a good life. In Norway. In 2011. And in the rest of the years I will live in this beautiful country.
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.
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.
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.