UK: Law Commission scoping consultation deadline this week; key findings and outputs from ‘Criminalizing Contagion’ seminar series may help inform the process

This week, the Law Commission – which reviews areas of the law in England and Wales that have become unduly complicated, outdated or unfair – will conclude its scoping consultation of the reform the Offences Against The Person Act, the law that is currently used to prosecute people living with HIV (and occasionally other sexually transmitted infections; one each so far for gonorrhoea, hepatitis B and genital herpes) for ‘reckless’ or ‘intentional’ transmission, as grievous bodily harm.

The deadline for responses is this Wednesday 11 February 2015.

The consultation is a scoping review – it is looking at the scope of whether a further full review of the existing law should take place, rather than examining what the law should be.

The consultation asks six key questions (out of 38) specifically relating to HIV (and STI) criminalisation:

We consider that future reform of offences against the person should take account of the ramifications of disease transmission. Do consultees agree?
We also consider that in such reform consideration should be given to: (1) whether disease should in principle fall within the definition of injury in any reforming statute that may be based on the draft Bill; (2) whether, if the transmission of sexual infections through consensual intercourse is to be excluded, this should be done by means of a specific exemption limited to that situation. This could be considered in a wider review; alternatively (3) whether the transmission of disease should remain within the offences as in existing law. Do consultees agree?
If the transmission of disease is to be included in any future reform including offences causing injury, it will be necessary to choose between the following possible rules about the disclosure of the risk of infection, namely: (1) that D should be bound to disclose facts indicating a risk of infection only if the risk is significant; or (2) that D should be bound to disclose facts indicating a risk of infection in all circumstances; or that whether D was justified in exposing V to that risk without disclosing it should be a question for the jury in each particular case. Do consultees have any preference as to these possible rules?
We consider the reform of offences against the person should consider the extent to which transmission of minor infections would be excluded from the scope of injury offences. Do consultees agree?
Do consultees consider that future reform should pursue the possibility of including specialized offences of transmission of infection, endangerment or non-disclosure?
Do consultees have observations on the use of ASBOs, SOPOs or other means of penalizing non-disclosure?

Responses to the scoping consultation, including those from the HIV Justice Network, will be published soon. Following the consultation, the Law Commission will decide on their recommendations for the scope of reform in this area and present them to Government in the form of a scoping report.

In the meantime, the summary of key findings and outputs from the Economic and Social Research Council’s seminar series ‘Criminalizing Contagion: legal and ethical challenges of disease transmission and the criminal law’, which took place at the Universities of Southampton and Manchester from January 2012 until September 2014, provides a comprehensive legal and academic overview regarding how the law should treat a person who transmits, or exposes others to the risk of, a serious infection such as HIV.

Written jointly by David Gurnham, Catherine Stanton and Hannah Quirk, the report provides a detailed overview of the discussions in the seminars as well as the numerous publications arising from them, and acknowledges contributions made by various groups and individuals.

Uganda: HIV Prevention and Management Act should be seen in context with Anti-Pornography Act, Anti-Homosexuality Act and Narcotics Law says OSF

On November 20, Uganda’s parliament passed the Narcotic Drugs and Psychotropic Substances (Control) Bill, also known as the Narcotics Law. A draconian piece of legislation, the law purports to deter drug abuse by imposing inhumanely long prison sentences-a conviction for simple possession can land a person in a cell for 25 years.

Sex, criminal law & HIV non-disclosure: What is wrong with Canada’s approach to HIV non-disclosure? (Canadian HIV/AIDS Legal Network, 2014)

This is the second of two short videos from the Canadian HIV/AIDS Legal Network explaining what the law currently is relating to HIV non-disclosure (covered in Part 1) and what is wrong with this approach. Watch Part 1 here: http://bit.ly/1oMs1DM

Flat funding, harsh laws could hurt Uganda's battle against HIV

KAMPALA, 25 June 2014 (IRIN) – Inadequate funding coupled with harsh laws targeting same sex unions could erode the gains so far made in the fight against HIV in Uganda, activists warn.

The AMA Adopts a Resolution Opposing HIV Criminalization

The Center for HIV Law and Policy is a national legal and policy resource and strategy center working to reduce the impact of HIV on vulnerable and marginalized communities and to secure the human rights of people affected by HIV.

HIV Criminalization: A Physician's Perspective

This essay is an excerpt from the LGBT/HIV criminal justice report, A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People with HIV. His name was Paul. I slid into the chair next to him in my examination room to console him as he cried.

Australia: Campaign against Victoria’s HIV-specific criminal law launched to tie in with Melbourne Declaration for AIDS 2014

Living Positive Victoria, the organisation representing people living with HIV in the Australian state of Victoria, has launched a campaign for community and cross-party political support to reform the state’s HIV-specific criminal law, the only such law in Australia.

Section 19a of the Crimes Act 1958,’ Intentionally causing a very serious disease’ states

A person who, without lawful excuse, intentionally causes another person to be infected with a very serious disease is guilty of an indictable offence.

In subsection (1) very serious disease means HIV within the meaning of section 3(1) of the Public Health and Wellbeing Act 2008 .

The statute, which treats HIV as exceptional and applies a uniquely higher penalty than for other crimes of violence, carries a 25 year maximum penalty.

The call for law reform is a response to the release of the Melbourne Declaration in advance of the 20th International AIDS conference, also known as AIDS 2014, to be held in Melbourne in late July.

“Leading into AIDS 2014 is a highly opportune moment to grasp the issue of law reform so that HIV is treated as a public health matter,” says Ian Muchamore, President of Living Positive Victoria.

The Melbourne Declaration focuses on the need to address multiple legal barriers in the global HIV response, in order “to defeat HIV and achieve universal access to HIV prevention, treatment, care and support”.

In line with the Oslo Declaration on HIV Criminalisation, it explicitly states that “nobody should be criminalized because they are living with HIV.” And elsewhere the Declaration “expresses concern at the continued enforcement of discriminatory, stigmatizing, criminalizing and harmful laws which lead to policies and practices that increase vulnerability to HIV.”

HIV criminalisation is set to be a major focus of international attention at AIDS 2014. Living Positive Victoria is one of the hosts of the Beyond Blame pre-conference (along with Victorian AIDS Council/Gay Men’s Health Centre, National Association of People Living with HIV Australia and Australian Federation of AIDS Organisations) which is supported by the AIDS and Rights Alliance of Southern Africa, Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV, HIV Justice Network, International Community of Women Living with HIV, Sero Project and UNAIDS.

Read and sign the Melbourne Declaration here

Read and sign the Oslo Declaration here

Read the Living Positive Victoria press release here

Uganda: Parliament passes ‘deeply flawed’ HIV law, takes ‘giant leap backwards’: urge President Museveni to veto

After years of intensive debate and strong local and international advocacy against many of the problematic clauses found within Uganda’s omnibus HIV law, yesterday Uganda’s Parliament passed the HIV Prevention and Control Act virtually unchanged from this 2010 version.

The bill includes mandatory HIV testing for pregnant women and their partners, and allows medical providers to disclose a client’s HIV status to others. The bill also criminalises ‘wilful and intentional’ HIV transmission, attempted transmission, and behaviour that might result in transmission by those who know their HIV status. There are some excellent analyses of the problematic provisions at The Observer (Uganda) and the Science Speaks blog.

Clauses 39 (‘attempted transmission of HIV’) and 41 (‘intentional transmission of HIV’) were adopted in the debate last week, as were clauses 13, 14 and 15 on mandatory and routine testing, with unverified reports that the ambit of clause 13 (‘HIV testing for purposes of criminal proceedings’) was broadened further. (Follow Parliament Watch Uganda [@pwatchug] on Twitter for latest details of the actual text).

Today, two press releases from Human Rights Watch, HEALTH Global Advocacy Project, and Uganda Network on Law, Ethics & HIV/AIDS (UGANET) and The International Community of Women Living with HIV (ICW) condemned the passage of the law in the strongest terms. They are likely to be the first of many.

“This HIV bill is yet another step backward in the fight against AIDS in Uganda,” said Maria Burnett, senior Africa researcher at Human Rights Watch. “It is founded on stigma and discrimination and based on approaches that have been condemned by international health agencies as ineffective and violating the rights of people living with HIV.”

Mandatory HIV testing and the disclosure of medical information without consent are contrary to international best practices and violate fundamental human rights, the three groups said. The criminalization of HIV transmission, attempted transmission, and behavior that might result in transmission by those who know their HIV status is overly broad, and difficult to enforce.

[…]

“For Uganda to address its HIV epidemic effectively, it needs to partner with people living with HIV, not blame them, criminalize them, and exclude them from policy making,” said Dorah Kiconco, executive director of Uganda Network on Law, Ethics & HIV/AIDS. “The president should not sign this bill and instead ensure a rights-based approach, recognizing that people living with HIV will prevent transmission if they are empowered and supported.”

[…]

“At the upcoming international AIDS conference, Uganda will be the example to all the countries gathered of how not to write laws on the HIV response,” said Asia Russell, international policy director at Health GAP (Global Access Project). “Parliamentarians are doing precisely the opposite of what Uganda should be doing to fight HIV.”

ICW’s press release is below

Today’s passage of the HIV Prevention and AIDS Control Bill represents a dangerous backslide in Uganda’s efforts to respond to HIV. While the bill may have been intended to facilitate and improve the HIV response in Uganda, the bill contains many poorly conceived and fear- induced provisions that have no place in a public health and human-rights-based response to HIV. As passed, this bill will actually weaken Uganda’s HIV prevention efforts and will have a detrimental and disproportionate impact on the rights of women and girls and in particular women living with HIV.

The International Community of Women Living with HIV Eastern Africa is extremely concerned about the devastating impact this law will have on the daily lives of women in Uganda. “It is disappointing that the Members of Parliament that we have engaged for so long, have ignored all the evidence, science and reason that we advanced as civil society organisations together with technocrats and scientists and chose instead, to act out of fear and unfounded hysteria – betraying the very will of the people that elected them to Parliament to represent their issues” said Lillian Mworeko, Regional Coordinator ICW EASTERN AFRICA.

The bill includes outdated and dangerous provisions for mandatory testing for pregnant women and their partners under Clause 14 (b) and (c). Mandatory testing of people living with HIV is a violation of fundamental human rights and accepted principles of informed consent and will negatively impact antenatal care attendance. Women—who will likely be the frequent target of these provisions— will shy away from hospitals and medical services. The devastating result will be that more children will be infected through mother to child transmission of HIV. Uganda is currently making strong strides towards zero infections from mother to child through use of proven strategies that emphasize voluntary counseling and testing. But Uganda’s gains could be lost if women are forced to test every time they visit a health facility. HIV testing of pregnant women, their partners and victims of sexual offenses must always be voluntary and conducted with informed consent.

“The fact that Uganda is even considering mandatory testing of pregnant women or victims of sexual offenses, represents a major step backwards for a country which showed early promise as an effective responder to HIV. Unfortunately, fear and ignorance have won the day in Uganda.” said Jessica Whitbread, Global Director of the International Community of Women Living with HIV.

Despite growing international consensus that criminalization is actually counter productive to the HIV prevention strategies, the Bill creates unnecessary and ill-advised additional criminal laws that criminalize attempted and intentional transmission of HIV. The International Community of Women living with HIV unequivocally opposes the criminalization of HIV status. The existing penal code already includes sufficient provisions to address criminal acts, creating additional parallel set of laws will just serve to persecute and punish people living with HIV. Criminalization will disproportionately impact women, who are more likely to know their HIV status through pregnancy related medical care. This provision will do little else but result in increased stigma and discrimination against people living with HIV, which are key drivers of the HIV epidemic.

Furthermore, the bill empowers medical workers to disclosure a person’s HIV sero status to a third party. Clause 21 (e); “where any other person with whom an HIV infected person is in close or continuous contact including but not limited to a sexual partner, if the nature of contact, in the opinion of the sexual medical practitioner, poses a clear and present danger of HIV transmission to that person;” Not only is this provision a clear violation of human rights and confidentiality but it is ripe for abuse by medical workers. Disclosure by medical workers of a person’s HIV status based purely on an individual opinion represents an institutionalized form of stigma and discrimination and dramatically increases the likelihood of violence against women living with HIV.

These poorly considered provisions at their best violate human rights and enshrine stigma and discrimination into law and at their worst will cause many people to shy away from accessing programs that work, such as prevention, treatment and care and support services including elimination of mother to child transmission services (eMTCT). Sadly, this bill undermines the very services that Uganda needs more than any other country in the world.

“Uganda is already facing a serious backslide from its early advances in responding to HIV, Uganda is currently one of three African countries experiencing increases in their HIV prevalence rates previously from 6.5% to 7.3 %. The passage of this Bill will only serve to increase this backslide and the President must save Uganda from this backlash”, says Margaret Happy, the Sexual Reproductive Health and Rights Officer, ICW Eastern Africa.

ICW Eastern Africa urges His Excellency Yoweri Kaguta Museveni, the President of Uganda, to rise above all and not assent to this Bill which is in contradiction of the commitments made by his wise assent to the East African Community HIV & AIDS Prevention and Management Act, 2012 .

Nigeria's anti-gay law, condemned by US, Britain and Canada, will harm HIV response, says UNAIDS

Local and international groups fighting AIDS warned on Tuesday that a new Nigerian law criminalizing same-sex marriage and gay organizations will jeopardize the fight against the deadly disease. Activist Dorothy Aken’Ova said the new legislation, already dubbed the “Jail the Gays” law, will endanger and even criminalize programs fighting HIV / AIDS in the gay community. Aken’Ova is executive director of Nigeria’s International Center for Reproductive Health and Sexual Rights based in Minna, Niger state.

The UN agency to fight AIDS and the Global Fund to Fight AIDS, Tuberculosis and Malaria expressed “deep concern that access to HIV services for lesbian, gay, bisexual and transgender people will be severely affected by the new law in Nigeria, further criminalizing LGBT people, organizations and activities, as well as people who support them.”

UNAIDS said the law could harm Jonathan’s own presidential initiative to fight AIDS, started a year ago. Nigeria has the second largest HIV epidemic globally, with an estimated 3.4 million people living with HIV. The disease affects many more gay men than heterosexuals, with 2010 statistics estimating national HIV prevalence at 4 percent compared to 17 percent among gay men, according to UNAIDS.

President Goodluck Jonathan’s spokesman confirmed Monday that he had signed the Same Sex Marriage Prohibition Act on Jan. 7, providing penalties of up to 14 years in jail for gay marriage and up to 10 years’ imprisonment for membership or encouragement of gay clubs, societies and organizations. The U.S., Britain and Canada have swiftly condemned the law, with Secretary of State John Kerry saying Monday that it “dangerously restricts freedom” of expression and association of all Nigerians.

Human rights activists reported that dozens of gay men were being arrested in northern Nigeria in an apparent response to the law. The law also criminalizes people and groups who support “the registration, operation and sustenance of gay clubs, societies and organizations, processions or meetings in Nigeria.” Those convicted could be jailed for 10 years.

Even before it was the passed, the law was being used to persecute gays, Aken’Ova said. In Bauchi state, she said police entrapped four gay men and tortured them into naming others. She said the police have drawn up a list of 168 wanted gay men, of whom 38 have been arrested recently. An AIDS counsellor told the Associated Press he helped get bail for the men. He spoke on the condition of anonymity for fear he would be arrested as well.

Jonathan, Nigeria’s president, has not publicly expressed his views on homosexuality. But his spokesman, Reuben Abati, told The Associated Press on Monday night, “This is a law that is in line with the people’s cultural and religious inclination. So it is a law that is a reflection of the beliefs and orientation of Nigerian people … Nigerians are pleased with it.”

Canada: Study finds prisoners with unsuppressed viral loads nearly twice as likely to share used needles if they had been incarcerated

People living with HIV are more likely to share syringes and not disclose they are HIV positive when they are in jail, according to a new study by researchers at the B.C. Centre for Excellence in HIV/AIDS. The study, conducted between May 1996 and March 2012, involved interviews with 657 people who used injection drugs and were HIV-positive.

It found the participants spent approximately 15 per cent of that time in jail, and while in jail they had a detectable amount of HIV in their bloodstream 83 per cent of the time, which meant they could transmit the infection to others because they were not taking their medication as prescribed. That rate dropped to 62 per cent when they were not in jail and back on their medication.

The study also found prisoners with unsuppressed viral loads were nearly twice as likely to share used needles if they had been incarcerated. “There is absolutely no reason why incarcerated individuals should not receive the same level of medical care as those in the public,” said Terry Howard, director of community based research at Positive Living B.C. and former prison outreach program co-ordinator.

He estimates about 20 per cent of prisoners are HIV positive, but the majority don’t disclose while in prison because of the stigma and direct repercussions to them. As an example, Howard said, if prisoners are using drugs and sharing a needle with other inmates, they don’t want to have to wait to be the last person to use the needle, which would be the case if the others knew they were HIV positive. “I’ve also heard horror stories about them being beaten up (for being HIV positive) and stigmatized by guards who will make a big show of snapping on gloves when transporting prisoners who are HIV positive,” Howard said.

He said guards have argued against a needed distribution program, saying the syringes could be used as weapons against them, but Howard said there’s never been an incident of corrections staff being stabbed by a contaminated needle in those countries that do have a safe needle distribution program. “It’s a red herring they fly but the government buys it, and our government doesn’t want to tolerate drug use in prison,” Howard said.