US: President’s AIDS council calls on feds to help states repeal HIV criminalisation laws

Advisory group says these statutes are ‘unjust’ and fuel the epidemic



The Presidential Advisory Council on HIV/AIDS (PACHA) passed a resolution last week that calls for an end to federal and state HIV-specific criminal laws and prosecutions.

While the resolution is only advisory, it recommends that the departments of Justice and Health and Human Services issue guidance and offer incentives to state attorneys general and state health departments to eliminate HIV-specific laws. The advisory group also asks these federal agencies to develop guidelines for how to approach HIV within criminal and civil justice systems that are “consistent with the treatment of similar health and safety risks.”

As the resolution notes, 32 states and two territories have laws criminalizing people living with HIV.

In explaining the reason to repeal these laws, the resolution reads:

People living with HIV have been charged under aggravated assault, attempted murder, and even bioterrorism statutes, and they face more severe penalties because law enforcement, prosecutors, courts, and legislators continue to view and characterize people living with HIV and their bodily fluids as inherently dangerous, even as ‘deadly weapons. Punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV. Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.

PACHA is also requesting that state and federal authorities review the cases of persons convicted under such laws and overturn convictions if deemed appropriate. The group is calling on the Centers for Disease Control and Prevention to “issue a clear statement addressing the growing evidence that HIV criminalization and punishments are counterproductive and undermine current HIV testing and prevention priorities.”

“Today’s announcement is an important advancement in our collective effort to modernize unjust and discriminatory HIV criminalization laws,” said Rep. Barbara Lee (D-Calif.), co-chair of the Congressional HIV/AIDS Caucus in a statement last week. Lee introduced the REPEAL HIV Discrimination Act in 2011, which never passed, and served on the United Nations’ Global Commission on HIV and the Law.

“I join the President’s Advisory Council on AIDS in calling on the Department of Justice and the Centers of Disease Control and Prevention to issue clear guidance to states and public health departments on the counterproductive effects of HIV criminalization policies; we must end this clear discrimination against people living with HIV,” Lee continued. “Criminalization laws breed fear, discrimination, distrust and hatred, and we must end them.”

The White House declined to comment on the resolution, but the National HIV/AIDS Strategy adopted by the Obama administration in July 2010 does call for state legislatures to “consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.”

Policymakers at the state level also welcomed the resolution. Randy Mayer, chief of the Bureau of HIV, STD, and Hepatitis for the Iowa Department of Public Health, said the resolution was a new tool in advocates’ fight to repeal Iowa’s HIV-specific law.

“This resolution came at an excellent time for Iowa,” Mayer said in an email to The American Independent.

State activists and public health officials, including Mayer, have laid out a strategy to repeal the state’s law.

“The advocates in Iowa have also aligned their efforts with a public health perspective, so the resolution was a reinforcement of their justification,” Mayer said. “I think the more public health entities that weigh in on this discussion the better.”

But while policymakers praise the resolution, activists urge cautious optimism.

Sean Strub, executive director of the anti-HIV-criminalization organization Sero Project, said the resolution was appreciated, but the “real test will be in whether federal agencies and the administration responds with the necessary urgency.”

Catherine Hanssens, executive director of the Center for HIV Law and Policy, which runs the Positive Justice Project, echoed Strub’s sentiment, noting that while the resolution is important, PACHA “has no power to order anyone to do anything.”

“[HHS] Secretary [Kathleen] Sebelius and President Obama both have the discretion to ignore the resolution’s recommendations.”

Regardless, Hanssens said the resolution is an important milestone in the battle to repeal HIV criminal laws in the U.S.

“The work of advocates who pushed for passage of the resolution is not over,” she said. “But we have passed a major marker on the road to reform, and justice, for many people and communities affected by HIV.”

Nondisclosure prosecutions and population health outcomes: examining HIV testing, HIV diagnoses, and the attitudes of men who have sex with men following nondisclosure prosecution media releases in Ottawa, Canada

This study was designed to examine HIV testing, HIV diagnoses, and the attitudes of men who have sex with men following media releases about a local nondisclosure prosecution in Ottawa, Canada. The authors first reviewed the trends in HIV testing and HIV diagnoses from 2008 through 2011 in Ottawa, Canada. They went on to explore the attitudes and beliefs of local MSM about HIV, HIV prevention, HIV serostatus disclosure, nondisclosure prosecutions, and public health.

Researchers found that, statistically speaking, HIV testing and HIV diagnoses among men who have sex with men did not significantly change after the media releases about a local nondisclosure prosecution. However, qualitatively, a subgroup of 27 men who have sex with men (12 HIV-positive, 15 HIV-negative) expressed their belief that the local public health department openly shares information about people living with HIV with the police. Some HIV-positive participants stated that this perceived association between the local public health department and police services caused them to not access public health department services. The authors conclude that nondisclosure prosecutions do likely undermine HIV prevention efforts.

US: New Study Questions Michigan’s “Health Threat” Law (Press Release)

Michigan health officials are using HIV surveillance technologies to assist in enforcing a “health threat” law that makes it illegal for HIV-positive people to have sex without disclosing their status.

A new University of Michigan study reveals that health officials employ the state’s names reporting database, alongside partner services referrals, for law enforcement purposes. However, this is bad social policy for a variety of reasons, says Trevor Hoppe, the study’s author and a doctoral candidate in sociology and women’s studies.

When clients visit publicly funded health clinics in Michigan to be tested for HIV, they can expect more than just a finger prick or blood draw. Counselors also ask clients extensive questions about their sexual practices and partners. If the client tests positive for HIV or other sexually transmitted diseases, the counselor will provide treatment referrals. They are also legally mandated to ask clients to report the names of sexual partners, which health officials attempt to contact to recommend that they be tested.

Hoppe found that some health officials also ask their clients if any of their partners reported to them that they were HIV-positive. Officials then attempt to cross-reference the reported name against the state’s database of everyone in the state who has been diagnosed as HIV-positive. If an individual reported as a partner is identified by the state as HIV-positive and the client did not report that they disclosed, an investigation would be launched that could have legal ramifications.

At least 24 states have laws making it a misdemeanor or felony for HIV-positive people to have sex without first disclosing their status. In Michigan, failing to disclose is a felony punishable by up to four years in prison—whether or not the person was ever at risk of contracting the disease from their partner.

“The evidence is mounting that these laws are bad public policy and certainly bad public health policy, yet Michigan health officials are helping to enforce them,” Hoppe said.

At the minimum, there is little transparency in how health officials use epidemiological data for law enforcement purposes, he says.

“Health officials in some local jurisdictions are using data they collect for public health purposes to help enforce the law, but they’re not telling their clients how their personal information could be used,” Hoppe said.

From an ethical perspective, the question is whether it is reasonable for health officials to use confidential medical information to enforce the law.

Hoppe interviewed 25 local health officials who manage “health threat” cases from 14 jurisdictions across Michigan. His research also reveals that how local health officials interpret what qualifies as a “health threat” varies. In some cases, local officials suggested that an HIV-positive woman who became pregnant or contracted another STI might be labeled a “health threat.”

“These systems were not intended for legal surveillance, yet data collected by them are susceptible to being used for criminal proceedings,” Hoppe said.

Whether this practice should be continued must be discussed among policymakers, advocates and stakeholders, including those in the HIV-positive and –negative community, he said.

The findings appear in the February issue of the journal Social Problems.

Social Problems – Controlling Sex in the Name of Public Health (2013)

Norway: National Association of People Living with HIV responds to Norwegian Law Commission report

Yesterday was the deadline for written responses to the Norwegian Law Commission report which shocked and disappointed HIV and human rights advocates in Norway and around the world on its release last October.

After spending almost two years examining every aspect of the use of the criminal law to punish and regulate people with communicable diseases (with a specific focus on HIV) the Commission recommended that Norway continues to essentially criminalise all unprotected sex by people living with HIV regardless of the actual risk of HIV exposure and regardless of whether or not there was intent to harm.  The only defence written into the new draft law is for the HIV-negative partner to give full and informed consent to unprotected sex that is witnessed by a healthcare professional.

Since then, Professor Matthew Weait has published Some Reflections on Norway’s Law Commission Report on Criminal Law and the Transmission of Disease on his blog highlighting some of problems with the arguments used in the report.

We have also published an interview with Kim Fangen, the only member of the Commission to vote against the use of a specific law to control and punish people with HIV and other sexually transmitted infections, which presented an alternative vision.

Today, we publish the English translation of the written response by Nye Pluss, the Norwegian national association of people living with HIV.

The organisation found that, overall, the report has three key weaknesses:

• It does not take into account the formidable global challenges related to HIV and AIDS and is not consistent with the international responsibilities that Norway has to follow-up recommendations that have come from a variety of organisations, including UNAIDS.

• It does not take into account the medical advances that have taken place in the HIV field over the past few years., in particular that HIV treatment is, in fact, now prevention, and that testing and treatment (“treatment as prevention”) is one of the most important preventive measures to combat the global HIV epidemic.

• It does not acknowledge that HIV criminalisation will help to prevent effective contact tracing and counselling, and thus influence the HIV response in the wrong direction. A desire for the use of punishment is, therefore, at the expense of public health.

Nye Pluss recommends that the Government and Parliament reject the choice of the majority’s conclusions in this area and remove the particular provisions of the Criminal Code.

The HIV Justice Network fully supports their arguments and conclusions and hopes that Norways parliamentarians follow the lead of Labour’s Håkon Haugli and The Conservative Party’s Bent Høie who came out against any specific law last July.

Below is the English translation of the Nye Pluss response, shortened and paraphrased in some areas, but with their full agreement and permission.  The original Norwegian version can be read here.

Nye Pluss’s board has read and discussed the Norwegian report. Our perspective is that, as people living with HIV, all aspects of Norwegian HIV policies, including any special penal provision, must have the net result of fewer new infections. Our primary perspective is therefore one of public health.

We have found that, overall, this report has three key weaknesses:

• It does not take into account the formidable global challenges related to HIV and AIDS and is not consistent with the international responsibilities that Norway has to follow-up recommendations that have come from a variety of organisations, including UNAIDS.

• It does not take into account the medical advances that have taken place in the HIV field over the past few years., in particular that HIV treatment is, in fact, now prevention, and that testing and treatment (“treatment as prevention”) is one of the most important preventive measures to combat the global HIV epidemic.

• It does not acknowledge that HIV criminalisation will help to prevent effective contact tracing and counselling, and thus influence the HIV response in the wrong direction. A desire for the use of punishment is, therefore, at the expense of public health.

Below, we elaborate our views on these three objections.

Norway’s international responsibility in the fight against HIV

The fight against HIV and AIDS is one of the biggest challenges we face in the world: two million die every year due to AIDS-related illnesses. Around 35 million people live with HIV globally. Nearly three million are newly infected with HIV each year. Norwegian authorities have a responsibility to contribute to the international HIV response. We therefore believe that the discussion on penalising HIV exposure or transmission in Norway must be seen in relation to  the international challenges we face. This report does not live up to those challenges.

At page 184 the report states:

“UNAIDS ‘work is global, but is mainly aimed at countries where the prevalence of HIV and AIDS is high. UNAIDS has no European office, such as WHO and recommendations etc. have a global objectives and are hardly suitable for Scandinavian or European conditions. The committee’s review will be largely based on our cultural context, which can be very different from the global.”

It therefore concludes that UNAIDS’ work and recommendations specifically relating to criminal laws are not relevant for Norway, while Norwegian authorities support UNAIDS efforts globally. This is, in our opinion, a somewhat arrogant and culturally discriminatory attitude to the situation in other countries. Although Norwegian law is only applicable in Norway, we expect that Norwegian laws at home should also follow, and are not contrary to, the beliefs and policies that we export to other countries in the world.

“Treatment as prevention” – a medical breakthrough in the fight against HIV

A medical breakthrough took place when the first effective HIV medicines appeared in 1996. In countries where there was good access to these medicines, the number of AIDS-related deaths fell quickly and drastically.  Treatment as prevention is, perhaps, just as big a breakthrough – we now know that effective HIV medication prevents new HIV infections. New research shows that the risk of infection is reduced by 96%, more than any other prevention method.

[Several paragraphs discuss international policy relating to ‘treatment as prevention’….]

Nye Pluss notes with surprise that the report only once refers to “treatment as prevention” and even then in a way that gives the impression that the authors of this section have not acquired up-to-date knowledge of the issue. It is regrettable that such an important resource which claims to provide a basis for Parliament to examine Norwegian HIV policy in a holistic context – not least relating to the criminal law – treats such an important part of international HIV policy so superficially. We believe that it is a serious academic failure not to discuss the effects of punitive sanctions on earlier testing and treatment.

Criminal law regulation of serious infectious diseases – an obstacle in the fight against HIV

HIV criminalisation has been a growing problem in many countries around the world in recent years. Criminalisation helps to maintain stigma and prevent openness about HIV, and is thus an unwanted obstacle in HIV treatment and prevention. In addition, HIV criminalisation in many countries works to suppress women and minority groups that are particularly vulnerable to HIV.

Nye Pluss believes that the criminalisation of HIV exposure and transmission has been a barrier to effective HIV prevention in Norway. In some groups, annual HIV figures have tripled over the last ten years, compared with the previous decade.

A future, efficient Norwegian HIV policy will depend on effective and efficient testing, counselling, contact tracing and treatment, such as a “treatment as prevention” strategy. Effective testing of affected populations, effective tracing of possible infected sexual partners and effective treatment is, along with condoms and awareness, cornerstones of reducing new infections in Norway.

For those of us living with HIV, it is important that a future Norwegian strategy is successful, so that fewer people acquire HIV in Norway….One such major obstacle to achieve reduced infection figures is the criminalisation of HIV through a special provision in the Criminal Code, as advocated by the majority of the committee behind the report.

In the pharmaceutical industry….the manufacturer must show that the drug’s harmful effects do not exceed its positive effects… Surely it is possible that an HIV law will negatively impact vulnerable groups of people with HIV who have immigrated from countries with non-democratic regimes, who are more likely to go underground if there are threats of punitive sanctions, so that testing, disclosure, contact tracing, treatment and counselling is not available to them? Nye Pluss consider it obvious that there exists such a legitimate doubt and that this is precisely one of the reasons that some MPs have requested a separate investigation of the criminal law as it relates to HIV. “It is therefore surprising that the majority of the commission’s members argue, without any scientific evidence, that there would be no negative impact to an HIV law.”

Moreover, many members of the committee suggest that “decriminalization could be perceived as a signal that infecting others or exposing others to infection, is no longer a serious matter”(page 248). This is an unscientific, tautological statement based on the completely undocumented assumption that because HIV exposure and transmission is criminalised in Norway it has worked as a prevention tool, and that decriminalising it would lead to more infections, despite a lack of any evidence supporting this.

Nye Pluss believes the committee majority here are completely wrong, and we can refer to international research studies that support this.

[A summary of studies from Canada (O’Byrne, 2012), the US (Sero, 2012), Scotland (Bird and Leigh-Brown, 2001), and England (Whitlock, Warwick et al, 2010) showing a negative impact of HIV criminalisation follows.]

Nye Pluss finds it surprising that the majority of the Committee does not seem to be familiar with the research that has been done in recent years which shows that HIV criminalisation has unique negative impacts on willingness to test, to disclose to sexual partners, and in the creation of uncertainty amongst health care workers and counsellors. This somewhat surprising rejection of the existence of such research and thus a lack of discussion of such readily available research, weakens, in Nye Pluss’s perception, a range of the majority’s conclusions on the importance of the criminal law’s impact on public health: not to discuss the importance of documented research in this area is a serious mistake and results in the majority’s conclusions on public health failing in crucial ways.

Another key point of the debate around a penalty provision for people with HIV is the growth we have seen in HIV figures among particularly vulnerable groups, such as men who have sex with men, over the last ten years…The extremely serious issue that is raised is whether the relatively large number of prosecutions over the past decade has affected HIV testing behaviour, thus increasing the number of untreated individuals, resulting in more new infections.

It is a serious public health issue when there is a tripling of HIV infection among men who have sex with men for the last ten years in Norway. We are in absolutely no doubt that public health has not benefitted from the use of the Penal Code, and are of the opinion that the studies and analyses conducted to date, and as mentioned above, show with great clarity that the increased number of criminal trials over the last decade have impacted Norwegian society and public health in an extremely negative way. Nye Pluss cannot see that the Criminal Code’s provisions against HIV, which the majority recommend, will result in fewer HIV cases.

Nye Pluss believes that the latest scientific advances pertaining to HIV treatment and prevention will do perfectly well by themselves without assistance from the criminal law, including those few cases where restrictive measures for infection control law would be needed against an individual.


Nye Pluss believes that the Committee’s recommendations to maintain the criminal regulation of HIV exposure and transmission and other general dangerous diseases, would undermine Norway’s international responsibility to participate in a common front to combat HIV in the world.

We must recognise that since 100% safe sex is not possible it would be impractical to allow the courts to put a specific limit on what is punishable in a world where sex is a universal activity for the continuation of humanity … To punish a select few who have not mastered ‘safer sex’ – defined narrowly as condom use – is neither a fair or an effective tool in this fight, but rather the opposite.

No matter where you draw the line regarding what is, or is not, a criminal offense, a specific penal code criminalising HIV exposure and transmission will prevent effective prevention, early testing, contact tracing, treatment and counselling, and will put a spoke in the wheels of the “treatment as prevention” strategy that promises to be the breakthrough in the fight against HIV. That the criminal law should be both an obstacle to international responsibility and to effective measures for domestic public health in this area is unacceptable for society.

Nye Pluss recommends that the Government and Parliament reject the choice of the majority’s conclusions in this area and remove the particular provisions of the Criminal Code.

Botswana: Proposed Public Health Bill goes against HIV programming best practice

Guest blog by Christine Stegling, Associate Director, Best Practice, and Senior Human Rights Adviser, International HIV/AIDS Alliance.

Reposted with permission from the International HIV/AIDS Alliance.

Late last week, and by all accounts with no previous public debate or discussion with relevant civil society representatives, a new public health bill was debated in Botswana’s parliament that surprised and shocked many activists. According to the Alliance’s Linking Organisation in the country, Botswana Network on Ethics, Law and HIV/AIDS (BONELA), this bill did not pass through the prescribed channels of consultation which would allow those most affected, such as people living with HIV and medical practitioners, to fully understand the rationale for the bill and to participate in shaping any kind of law reform.

The bill makes provisions that go against all better knowledge of a best practice approach to HIV programming based on the respect of human rights and leading to positive public health outcomes for all. For example it provides for non-consensual HIV testing, HIV testing without the knowledge of the patient and the possibility for doctors and dentists to require an HIV test before undergoing medical or dental procedures.  It also proposes that people living with HIV inform any sexual partner or care givers of their status, regardless of the actual risk of transmission.

While some of the latter provisions are undoubtedly aimed at reducing the risk of future HIV infections, the bill as it stands undermines public health efforts to encourage people to learn about their HIV status and puts a disproportionate responsibility on people living with HIV. Some provisions in the current bill are a positive step however: outlawing pre-employment HIV testing and allowing young people from the age of 16 to receive an HIV test without parental consent. In particular, the clause on non-discrimination in the work place has been a long standing demand by civil society and will, I am sure, be welcomed by many in Botswana.

More could be said about the bill and surely Botswana civil society will be making their voices heard in parliament and in the media. But what is most frustrating is that for all the laudable efforts by the government to devise a national HIV programme based on support, openness and availability of services (including anti-retroviral treatment), Botswana has consistently failed to create an enabling legal environment that supports human rights and ensures non-discrimination of people living with HIV.

The National AIDS Council (NAC) of Botswana received a comprehensive report on HIV and the law as far back as 2005. I was a member of the council at the time and still have vivid memories of the lengthy debates about necessary law reform that would help to remove some of the barriers to an effective HIV response. But the report was never acted on. Seven years later, a poorly drafted piece of legislation is being debated in parliament that will undermine a response based on respect, dignity and openness.

Last week in the UK, the Global Commission on HIV and the Law launched its report presenting a coherent and compelling evidence base on human rights and legal issues relating to HIV. Former president of Botswana and long serving chair of the Botswana National AIDS Council, Festus Mogae, was one of the high profile commissioners involved in the report. It is disheartening to think that such an ill informed and badly formulated bill is now being debated in Botswana under his watch and one can only hope that his political influence and wisdom will prevent it from being passed.

This recent episode is just another example of how the law is often not used to promote a legal environment that supports access to HIV services but rather creates an atmosphere of distrust and persecution, fuelled by stigmatising attitudes against people living with HIV. It is sad to think that 30 years into the epidemic we have still not embraced a culture of equity, empowerment and support. Debates such as the current one in Botswana’s parliament also remind us about the urgent need to continue supporting civil society even in relatively well resourced countries in order for them to play the watch dog role that is so desperately needed and to ensure that the public is given the democratic space to critically examine law reform processes.

What is needed is not more well meaning rhetoric about the importance of human rights at international level, but rather support to those on the ground that hold political actors accountable to translate such rhetoric into reality and in the best interest of those with less influence and voice.


Canada: Analysis and implications for people with HIV following Supreme Court HIV non-disclosure decisions

The Canadian HIV/AIDS Legal Network has published three important new resources in the aftermath of last month’s devastating Supreme Court decision which found that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission.

Not disclosing in such circumstances means a person with diagnosed HIV could be convicted of aggravated sexual assault.

As well as a detailed analysis in a briefing paper (aussi disponible en français) and a shorter info sheet, the Legal Network has produced a very helpful – if depressing – Q&A for people living with HIV (aussi disponible en français) as well those who support and advise them.

It is clear from these analyses that the Supreme Court’s decisions are a major step backwards for human rights and for public health.

I am reproducing below the commentary from their briefing paper as well as the Q&A, with permission.  For the entire text, with footnotes and references, please visit the  Canadian HIV/AIDS Legal Network website.

Canadian HIV/AIDS Legal Network


HIV non-disclosure and the criminal law: An analysis of two recent decisions of the Supreme Court of Canada (R. v. Mabior, 2012 SCC 47, R. v. D.C., 2012 SCC 48)


On October 5, 2012, the Supreme Court of Canada released its decisions in the cases of Mabior and D.C. The Court decided that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission. Not disclosing in such circumstances means a person could be convicted of aggravated sexual assault. In defining when there is a “realistic possibility” of transmission, the Court has set the bar very low. At this time, the only sex that the Court has recognized as not posing a realistic possibility of HIV transmission is vaginal sex that takes place when (1) a condom is used, AND (2) the person living with HIV has a low or an undetectable viral load. If both of these conditions are met, then there is no obligation under the criminal law to disclose one’s HIV status. However, the Court has not clarified how the requirement to disclose in the case of a “realistic possibility” of transmission applies to any sexual activity other than vaginal sex.


For people living with HIV and for those working in the field of HIV prevention and care, these decisions are a major step backward from the Supreme Court of Canada’s previous decision in Cuerrier. While the Court said it was maintaining the “significant risk” test it previously established in 1998, it has deprived the word “significant” of much meaning. A “significant risk” of transmission must now be understood as a “realistic possibility” of transmission, and the Court says this includes anything higher than a “negligible threshold” or anything more than a “speculative possibility.”

By deciding that there is a duty to disclose before vaginal sex unless both a condom is used and a person’s viral load is low (i.e., where the risk is almost zero), the Court effectively decided that almost any risk, no matter how small, could trigger a duty to disclose, even as the Court also declared that it did not want to criminalize “any risk, however small.” This was but one of numerous contradictions in the Court’s judgments in these cases. In essence, the Court purported to put some limit on the scope of the criminal law, but that limit was largely illusory.

The Supreme Court recognized that although the law must ensure that consent to sex is meaningful, “not every deception that leads to sexual intercourse should be criminalized.” It also stated that there must be a balance between a sexual partner’s interest in autonomy and equality in consenting to sex, which values are entrenched in the Canadian Charter of Rights and Freedoms, and “the need to confine the criminal law to conduct associated with serious wrongs and serious harms.” The Court further acknowledged that an overly broad use of the criminal law would be unfair and stigmatizing for people living with HIV, and that the experience of other common law jurisdictions “sounds a note of caution against extending the criminal law beyond its appropriate reach in this complex and emerging area of law.”

Yet despite these multiple warnings, the Supreme Court of Canada chose to expand the scope of the criminal law in cases of HIV non-disclosure and to clearly indicate that its new test of disclosure being required in the case of a “realistic possibility” of transmission is “specific to HIV.” Moreover, although the Court was clear that “[t]he potential consequences of a conviction for aggravated sexual assault … underline the importance of insisting on moral blameworthiness in the interpretation of [the law],” it failed to address the issue of the mens rea (i.e., “guilty mind”) required to obtain a conviction for HIV non-disclosure, as had been suggested by the coalition of AIDS organizations. As a result, based on the Court’s decisions in Mabior and D.C., a person who acts responsibly by taking highly effective precautions to protect their partner, and who has no intent to cause harm, can face charges of aggravated sexual assault.

Finally, the Court did say that the law should be open to “adapting to future advances in treatment.” Such advances could further affect both the risks of HIV transmission and the harm associated with HIV. But very significant advances have already taken place. When treatments are available, HIV is already a chronic and manageable disease. Moreover, the impact of treatment on dramatically reducing what are already very small risks is now well established. It is therefore unfortunate that the Court refused to consider this existing evidence about the impact of low viral load sufficient to preclude criminal charges.

In addition to its contradictory approach to assessing and criminalizing the risk of HIV transmission, the Court’s approach to consent was also deficient. The Court made a passing reference to an earlier, leading case (R. v. Ewanchuk) about when consent to sex is not valid; Ewanchuk concerned rape myths and situations where there was no real consent to sex because it was forced or because a person was afraid to refuse. The Court also repeatedly asserted that its approach in Mabior and D.C. was in line with the Charter values of equality and sexual autonomy.

But nowhere did the Court meaningfully analyze how the law protects personal autonomy and advances equality (i.e., specifically for women) by overriding the consent of an adult to engage in sex solely because of the absence of certain information they might prefer to know. The Court ignored the cases decided in Canada since Cuerrier on HIV non-disclosure and much of the analysis emerging from various other, similar jurisdictions where the trend is to limit the criminal law. Whether or not the Supreme Court wants to admit it, people do have sex without full and complete information about their sexual partners all the time — including in circumstances which can give rise to some risk of serious harm. Yet the law does not step in to all such circumstances to override consent and criminally prosecute the lack of disclosure of information.

Consenting adults are capable of deciding whether to have protected or unprotected sex without being aware of whether a particular partner does or does not have HIV or another sexually transmitted infection (STI), and do so often. Contrary to the Court’s basic assumption, sexually active adults are not deprived of their autonomy, including their ability to decide whether to practise safer sex, simply because they lack information about a sexual partner’s HIV or other STI status.

The Court also failed to consider the challenges associated with disclosure of a heavily stigmatized and misunderstood condition: repercussions can include loss of privacy, discrimination and rejection, and even violence. Lack of disclosure may not be about asserting force over another person in order to gain sexual gratification — which is the assumption behind equating it with aggravated sexual assault — so much as about protecting oneself from violence or other harm. By broadly asserting that this is about protecting the dignity and autonomy of the sexual partner without any examination of the range of factors at play when people have sex, the Court revealed a shallow understanding of the values that it purports to protect when criminalizing HIV non-disclosure, even in cases where the risk of transmission is miniscule. Such an approach trivializes sexual assault and diverts the law from protecting women’s physical and sexual autonomy.

In addition, the Supreme Court decisions in Mabior and D.C. did not provide much certainty in the law. There are many questions that remain unanswered and that will be tested in courts on the backs of people living with HIV. Do people have a duty to disclose before they engage in oral sex? What about those who have an undetectable viral load at the time they have oral sex? How do these decisions apply to anal sex?

Finally, these decisions further undermine public health and the rights of people living with HIV. They create additional disincentives to seek HIV testing and will discourage some people from talking with their counsellors and physicians about their sexual and disclosure practices, as medical and counselling records can be subpoenaed and used in criminal investigations.

The Court’s decisions will also disproportionally affect the most vulnerable. Access to treatment was once an issue of public health and social justice. Now it is also a criminal issue. People with inadequate access to care, treatment and support may not be able to establish a low viral load. If they do not or cannot disclose their status — including because of fear of violence or other negative consequences — they will be exposed to criminal conviction and imprisonment. Based on the Supreme Court of Canada’s judgments, a condom alone is not sufficient to avoid conviction.

The Court has put another tool for coercion into the hands of abusive partners. This can only exacerbate the vulnerability of HIV-positive people in abusive and/or violent relationships to blackmail and threats of prosecutions, an outcome that will disproportionately affect women living with HIV. In summary, the Court’s decisions in Mabior and D.C. make already bad and unclear law, which has resulted in uneven application and injustice in numerous cases, even worse — for people living with HIV, for HIV prevention and care efforts, and hence for public health.

Q&A: Implications of recent Supreme Court of Canada decisions for people living with HIV


When do you have a legal duty to disclose your HIV-positive status to a sexual partner?

The Supreme Court of Canada says that you must disclose your status before having sex that poses “a realistic possibility of transmitting HIV.” But the Court also found that almost any risk is “realistic,” no matter how small. Based on the Court’s decisions, you have a legal duty to disclose:

▪ before having vaginal or anal sex* without a condom (regardless of your viral load); or

▪ before having vaginal or anal sex* with anything higher than a “low” viral load (even if you use a condom).

* See below for more information on the duty to disclose and anal sex.

In summary, either using a condom or having a low viral load is not enough to preclude criminal liability in cases of HIV non-disclosure when it comes to vaginal and anal sex.

When don’t you have a duty to disclose?

The Supreme Court of Canada was clear that you do not have a duty to disclose before having vaginal sex if (1) your viral load is low or undetectable and (2) you use a condom. Both of these are required.

▪ NOTE: Your viral load does not need to be “undetectable.” A “low” viral load is sufficient. What this means remains to be defined in subsequent cases. However, based on the Supreme Court of Canada decisions, it seems that it should at least include any viral load below 1500 copies of the virus per millilitre of blood.

What is still unclear?

There is still a lot of uncertainty in the law. Because the cases before the Supreme Court of Canada only dealt with HIV non-disclosure in the context of vaginal sex, it is not clear how the test of a “realistic possibility of transmission” will be applied to other sexual acts.

▪ What about anal sex?

Anal sex poses higher risks of transmission than vaginal sex, so the duty to disclose is at least as strict as for vaginal sex. In other words, you have a duty to disclose before having unprotected anal sex or when your viral load is higher than “low.” It might be the case that, as with vaginal sex, if you use a condom and your viral load is low, you don’t have a legal duty to disclose. But at this time, we can’t say for certain if satisfying both these requirements (condom use plus a low viral load) will be enough to avoid convictions in the case of anal sex.

▪ What about oral sex?

Oral sex (without a condom) is usually considered very low risk (i.e., an estimated risk ranging from 0 to 0.04%). We don’t know at this point whether courts will find that there is a duty to disclose before oral sex without a condom. We also don’t know whether it makes a legal difference if you are receiving or performing oral sex, or whether the amount of semen or vaginal fluid that the person performing oral sex is exposed to can make a legal difference.

What if you have a low or undetectable viral load AND use a condom but the condom breaks?

This is a very difficult question to answer and there are several factors that you should take into account:

▪ Although this issue was not addressed by the Supreme Court of Canada, you may have a duty to disclose in the case where a condom breaks.

▪ Disclosing your status after a condom breaks could be relevant to your sexual partner in deciding whether to seek “post-exposure prophylaxis” (PEP) with antiretroviral drugs to further reduce any risk of infection.

▪ But disclosure in such circumstances may also expose you to an increased risk of violence and/or threat of prosecutions. HIV continues to generate a lot of fear and misconception. Your partner may have a bad reaction if he or she discovers that you are HIV-positive after a condom breaks.

How can you protect yourself against prosecutions?

There is no guaranteed way to avoid being accused of HIV non-disclosure. People may lie or make mistakes about whether disclosure took place and/or whether a condom was used. But there are things you can do that may reduce the risk of criminal prosecutions or conviction for HIV non-disclosure.

▪ Tell your sexual partners that you are HIV-positive before sex, and try to get proof that you told them about your status (e.g., disclose your status in front of a witness before having sex, such as a counsellor or doctor, who can document that disclosure took place, or sign a joint document).

N.B.: Please be aware that any document that would establish that you had sex prior to disclosure might work against you. This could especially be the case if you had vaginal or anal sex before you first disclosed and, at the time of that sexual act, you did not use a condom or you cannot establish that your viral load was low or undetectable at that time.

▪ Use a condom when you have vaginal or anal sex and see a doctor regularly to create a record of your viral load test results showing lowered viral load.

Other important things to know about the Supreme Court of Canada decisions and the legal duty to disclose:

▪ There is no distinction between silence and a lie. People may face criminal charges for not disclosing their status whether their partners inquired about their HIV status or not.

▪ There is no distinction based on the circumstances of a particular encounter, including the type of relationship. People may face criminal charges whatever the type of relationship they had with their partner (e.g., whether with a casual partner versus a spouse) and whether the sex was for love, fun, money, procreation or drugs.

▪ People living with HIV can be prosecuted even if they had no intent to harm their partner.

▪ People living with HIV can be charged with aggravated sexual assault for not disclosing their status. An aggravated sexual assault is a sexual assault that “endangers the life” of the other person. It carries a maximum penalty of imprisonment of life and mandatory registration as a sexual offender.


The information contained [above] is information about the law, but it is not legal advice. For legal advice, please contact a criminal lawyer.

US: HIV Medicine Association calls for repeal of HIV-specific laws

The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) has issued a strong statement urging the repeal of HIV criminalisation statutes in the United States.

The HIVMA statement, which represents physicians, scientists and other health care professionals across the United States, demands the following:

  • An end to punitive laws that single out HIV infection and other STIs and that impose inappropriate penalties for alleged non-disclosure, exposure and transmission
  • All state and federal policies, laws and regulations to be based on scientifically accurate information regarding HIV transmission routes and risk;
  • A federal review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offences to identify harmful policies and federal action to mitigate the impact of these laws, including the repeal of these laws and policies or guidance for correcting harmful policies; and
  • Promotion of public education and understanding of the stigmatising impact and negative clinical and public health consequences of criminalisation statutes and prosecutions.

The HIVMA statement is another extremely important development in the Positive Justice Project’s campaign to repeal HIV-specific criminal laws in the United States.

In March 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD) – a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US – issued a similar statement.

The full HIVMA statement, which can be downloaded here, is published below.


(Approved: October 16, 2012)

The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) represents physicians, scientists and other health care professionals who practice on the frontline of the HIV/AIDS pandemic. HIVMA strongly advocates public policies that are grounded in the science that has provided the tools and knowledge base to envision a world without AIDS.

Stigma and discrimination continue to be major impediments to the comprehensive response necessary to address the HIV public health crisis. Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV- infected are unjust and harmful to public health around the world.

In the U.S., HIV criminalization has resulted in unacceptable human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty-two states and two U.S. territories have HIV-specific criminal statutes. Thirty-two states have arrested or prosecuted individuals with HIV infection for consensual sex, biting and spitting. These laws and prosecutions unfairly target individuals with HIV infection and are not based on the latest scientific knowledge regarding HIV transmission, including the finding that transmission risk from biting or spitting is negligible.

Individuals with HIV infection can live healthy lives and approach near normal life expectancies with access to HIV care. Early diagnosis and effective management of HIV infection not only improves clinical outcomes for infected individuals but significantly reduces their risk of transmitting the virus to others. Laws that criminalize HIV infection discourage individuals from learning their HIV status and from receiving care. In doing so, they jeopardize the lives of HIV-infected individuals and place more individuals at risk of contracting an infectious disease that remains fatal if untreated.

HIV-specific criminalization fuels the stigma associated with HIV infection that slows efforts to combat the disease. Despite the availability of highly effective treatment for HIV infection, of the 1.1 million individuals living with HIV infection in the U.S., nearly 20 percent remain undiagnosed, only 37 percent are in care and just 25 percent have undetectable levels of the virus in their blood which makes it unlikely for them to be infectious to others.

All individuals must take responsibility for protecting themselves from HIV infection and other sexually transmitted infections (STIs). All persons engaging in unprotected or potentially risky sexual behavior are encouraged to discuss and disclose HIV and STI status except in situations where disclosure poses a risk of harm.

HIVMA Position: 

HIVMA urges a coordinated effort to address and repeal unjust and harmful HIV criminalization statutes. We support the following:

  • An end to punitive laws that single out HIV infection and other STIs and that impose inappropriate penalties for alleged nondisclosure, exposure and transmission;

    All state and federal policies, laws and regulations to be based on scientifically accurate information regarding HIV transmission routes and risk;

  • A federal review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses to identify harmful policies and federal action to mitigate the impact of these laws, including the repeal of these laws and policies or guidance for correcting harmful policies; and
  • Promotion of public education and understanding of the stigmatizing impact and negative clinical and public health consequences of criminalization statutes and prosecutions.


Norway: Dissenting Law Commission member, Kim Fangen, ‘stands alone’

Last week’s publication of the Norwegian Law Commission’s disappointing report was “a crucial moment for us in Norway – actually for all HIV activists in the Nordic countries,” says Kim Fangen, the only member of the Commission to vote against the use of a specific law to control and punish people with HIV and other sexually transmitted infections.

Kim’s alternative vision, as detailed in Chapter 10 of the report (only available in the full Norwegian version, not the English summary, but translated into English by the HIV Justice Network and included in full below) is one of a supporting and enabling environment, where people living with HIV are seen as part of ‘the solution’ and not ‘the problem.’

“It is not through criminal law that we reduce the spread of HIV,” he writes. “I believe that HIV and other sexually transmitted infections are solely a health issue. That’s where the focus should and must be, if one wants to prevent more infections. This means that we must change our mindset and change our course from criminal regulation to a health-related approach.”

His solution is a uniqely Norwegian version of the new paradigm of HIV prevention for people living with HIV, known as Positive, Health, Dignity and Prevention –  a comprehensive approach to supporting people living with HIV with their prevention and social needs, not through fear or coercion but through empowerment and with dignity.  Much of the solution is already there in Norway’s HIV Action Plan – but as Kim notes, with a few exceptions, little of the plan has actually been actioned.

In his first interview since the Commission report was released, Kim tells the HIV Justice Network how he feels about the report and what the rest of us can do to help effect a change for the better to mitigate the Nordic region’s overly harsh and punitive approaches to people living with HIV.

Q: As the only person openly living with HIV on the twelve person Commission, what did you hope to achieve?

When I was asked to be asked to be part of the Norwegian Law Commission, I was very happy and proud.  I, and many of my friends and colleagues living with HIV, believed it was a promising sign that they had reserved one of the Commission’s twelve seats for someone living with HIV.

I actually believed that there was a genuine will and desire to investigate the issues raised in our mandate and to produce recommendations that hopefully would point Norway in a new direction, towards decriminalising potential HIV ‘exposure’ and unintentional transmission.

I did not think that it would be easy, but I thought it would be possible. I honestly thought that finally there would be no need to single out people with HIV as group so hazardous that Norwegian society felt the need of a specific law to protect itself.

What I never envisaged was that, in the end, I would be standing alone.

Q: When did you realise that you point of view was not going to be supported by the rest of Commission?

It was quite early in the process. I realised that not only was it going to be difficult, but that I was quite alone not wanting a specific law.

I really feel that the reason for my inclusion on this Commission was not to learn more from those of us living with HIV, but was instead a kind of tokenism – by having a person living with HIV on board I believe they thought they would be able to silence us once and for all.

Q: What disappoints you the most about the report?

I cannot help feeling that a great opportunity has been lost and the goodwill of people with HIV misused. This is a sentiment I share with many of my friends and colleagues both at home and abroad. Many of us are so very disappointed. We honestly believed we would finally experience a change now,  just as we, ironically, are about to commemorate 30 years since the first Norwegian was diagnosed with HIV.

And so I am afraid that we will not get the debate we so desperately need. I worry that this report will provide politicians with easy solutions, something Norway will not benefit from.

Q: Is there anything positive in the report’s recommendations that you would like to highlight? For example, I was impressed by the recognition that people with HIV (and other communicable diseases) require “psychosocial support to enable them to handle the risk of infection properly, and assistance in dealing with any underlying problems such as mental illness or substance use.”

I’m glad that you pointed this out. I do feel that I have been listened to when I have spoken of supporting people living with HIV, and the clinics can do much more to help in guiding and strengthening each individual. This is the kind of work I am directly involved in myself.

Q: Do you think the report’s content and conclusions are completely consistent with Norway’s commitments to human rights and in terms of making laws based on evidence and not ideology?

No, I do not. I have on several occasions talked about our responsibility to practise what we preach. I do not think Norway is doing that.

Q: How might the report impact the rest of the Nordic region?

HIV and the law are being debated and discussed all over the Nordic region. All of the four countries are at different stages but our goals are the same, to end the overly broad criminalisation of HIV.

My hope is that Sweden, Denmark, Finland and Norway will join forces. We will be so much stronger if we pull together. Next year will we will be commemorating 30 years since Norway had its first HIV diagnosis.  We, in the newly-established HIV Patient Network will be using that to the fullest and, of course, criminalisation will be on top of the list.

Q: The process will take another 18 months before parliament decides on whether or not to enact or abolish a specific criminal law. What are your plans?

My only hope now is that the international response to this report will be so substantial, so clear, and so loud that it will have an impact on Norway’s politicians.

I am hoping to organise a joint Nordic meeting in Oslo sometime during 2013, preferably before the deadline for the hearing letter goes out, when we are still able to influence the process before it is finalised some time in 2014.

If we can thoroughly examine the situation in all of the Nordic countries, invite politicians, medical and legal practitioners, experts and specialists in fields like sexuality, ethics and human rights, as well as members of the international civil society, we should be able to strengthen our arguments and support those in office who actually can directly influence the debate.

In the meantime, for those who haven’t already signed the Oslo Declaration on HIV Criminalisation, please take a moment to read it and support our efforts. I would like thank everyone who contributed, who made this possible, and especially to the HIV Justice Network.  I know that it has already caused a stir in Norway, and I feel that there is so much more to gain from it. It’s like a tool that is still in its wrapping, and it has yet to reach its full potential.

Below is the full English translation of Kim’s submission to the Commission, outlining his alternative vision, from Chapter 10 of the report.

One of the committee members, Kim Fangen, lives with HIV and has been involved in working in this field for many years.

As stated during the assessments in Section, Mr Fangen says that there should be no special penal targeting disease transmission directly between humans. Mr Fangen believes that any criminal proceedings should take place using the general penalty provisions of bodily harm, and that these penal provisions should only be applied where the perpetrator acted with the intent to infect another, and the disease is transferred.

The rationale for this position is stated in the following that Mr Fangen has written on this matter:


New time. New inspiration.


HIV has been a part of our global reality for over 30 years. It is estimated that 60 million people have been infected during this period, 35 million of whom are alive today. For the first time in the history of HIV in the world, data show that the number of people that are newly diagnosed HIV positive is on a downward trend. This is primarily because many people with HIV have access to treatment. Treatment not only allows people with HIV to live a long healthy life, but the majority who are on treatment have a fully suppressed HIV viral load and are thus very unlikely to be infectious. The US Centers for Disease Control and Prevention (CDC) recently reviewed the latest research data and concludes that antiretroviral therapy reduces the risk of a person with HIV transmitting the virus to an HIV-negative person by 96%. UNAIDS has begun to talk about a world without HIV in its 2011-2015 strategic plan, ‘Getting To Zero’. Medical progress has thus changed the situation in a very positive direction. This change should also be reflected in legislation and case law.

However, the situation is not only positive. In some countries and in some groups, we are seeing an increase in the number of new HIV diagnoses. In Norway, the number of annual new HIV diagnoses among gay and bisexual men and other men who have sex with men has tripled since 2002. This increase is very serious and requires that we strengthen and develop prevention among both HIV-negative and HIV-positive individuals.


Does HIV belong in the criminal code?


As person living with HIV, my primary focus has been on HIV when the committee has discussed details of the currently adopted provisions for serious communicable infectious diseases in the 2005 Penal Code § § 237 and 238. Most of my arguments stem from the experiences we have had with HIV in the applicable provisions of the 1902 Penal Code § 155, which for years has rightly been called the ‘HIV paragraph’. As you know, this is not an HIV-specific law, but in practice it has, almost without exception, been used to prosecute HIV. There are only a few cases where it has been applied with another communicable disease (respectively, hepatitis B and hepatitis C).

I think that HIV-related work, both in terms of caring for people with HIV, and preventing new infections, has not well been served by such legislation, which stigmatises  those of us with HIV and creates the perception that were are potential criminals, and does not take into account that people with HIV have the right to a good sex life. The legislation does not relate to the psycho-social challenges it means to live with HIV, and is not adapted to the fact that the reduced quality of life and difficulty in coping with safer sex are often intertwined. The legislation has not been clear on what constitutes unlawful sexual behaviour, and criminal liability is not consistent in relation to current knowledge about HIV and the risk of transmission.

Furthermore, I believe that the implementation of this legislation violates the fundamental principles of equality before the law. It seems as if the law is both random and unfair when only a few cases have been filed in recent years, despite the fact that several hundred people are diagnosed with HIV each year. It also seems unfair and counterproductive that all responsibility should rest on those of us who are familiar with our own HIV status, when we know that many are not aware of their own status and that new infections require HIV-negative individuals to choose to have unsafe sex.

In light of the increasing number of new HIV diagnoses among gay and bisexual men and other men who have sex with men, one can rightly ask what does that suggest for this law in terms of HIV prevention? My contention is that it has not served its purpose, whether viewed from a public health perspective or an individual prevention perspective. HIV is no longer a threat to public health, as one assumed it was going to be early in the 1980s. We have been aware of this for many years now. Even before effective treatment arrived, this was a fact. Nevertheless, it seems that the ‘epidemic’ mentality lingers in the minds of many people.

A public health perspective, however, is important when it comes to the spread of other communicable diseases through air, water and food. I have therefore, together with a committee unanimously decided that § 238 should be amended to apply only to such infections, see chapter 11 and the committee draft laws in Chapter 14

It is not through criminal law that we reduce the spread of HIV. I believe that HIV and other sexually transmitted infections are solely a health issue. That’s where the focus should and must be, if one wants to prevent more infections. This means that we must change our mindset and change our course from criminal regulation to a health-related approach. Both partners should be responsible for their own sexual health, but this should not be linked to punishment. I do not believe that criminal law is a suitable tool for regulating health-related behaviours. Using the Penal Code, however, can make it appear as if the Government has been pro-active on this issue when instead it actually creates a false sense of security.




I believe that one should not criminalise unprotected sex and consequently the transmission of sexually transmitted infections. In sexual relations between two equal  partners who voluntarily decide to have sex, no heed is given to criminalisation / criminal law at home, regardless of whether HIV is transmitted or not. I believe that punishment should only be used in cases where you can prove that someone has intended to transmit a communicable disease and succeeded in doing this. Then the general provisions on bodily harm can be used, but in all other cases general laws on ‘offences against the person’ should not be used.

My suggestion therefore implies a clear decriminalisation, as I suggest that prosecutions should only occur where there is intent in the form of wilful intent and infection actually occurs. Transmission that occurs through dolus eventualis [recklessness] should, I suggest, not be prosecuted, even if infection actually occurs. This also applies to cases where there is only a negligent state of mind. If there has only been the potential for exposure, i.e. infection has not occurred, as I have already suggested, this should not be punished.


People with HIV – an untapped resource


Those of us who are living with HIV want to be involved in reducing infection rates. We want to be “part of the solution” and not be seen as a “problem”. Just as our society desires that all groups of patients are equal partners in health, I believe that people with HIV in particular are an important group to include. I think we are an untapped resource in prevention. We have unique knowledge in that can say something about why we were infected. This knowledge has so far not been made use of – no one asks us about possible underlying / contributory reasons why we were infected. Here, there is a great potential in terms of prevention of new infections, and we want to be involved in this work.


Common goals


Whatever we may think of the Penal Code as all actors within the HIV field (whether government, organisation or activist) a common goal is to prevent people from becoming infected with HIV.

How do we reach this goal? Measures should focus on the HIV-positive and HIV-negative. We must strengthen and set clear requirements for disease control. We need to improve the coping ability of all people living with HIV. We need more testing, more often. Those who are newly diagnosed who wish to start treatment should be allowed to do so. We need to focus on the importance of risk/harm reduction, and realise that it can make a substantial contribution to ‘traditional’ prevention. Doing even something right is better than doing nothing at all.

There is no reason that Norway might not become the best in the world in this area – we have the knowledge, skills and the economy. We have a clear situation, and we are able to reach everyone.

Sexually transmitted infections are a part of our shared reality. It’s not just HIV that is increasing in scope, but other infections. There are an increasing number of challenges, such as treatment-resistant gonorrhoea. We do not yet know the extent to which this will continue and what consequences will ensue. The more times a person is treated for a sexually transmitted infection, the greater the risk of complications or of developing resistance potentially resulting in a chronic condition. Although this information has reached the majority of the population it does not change the habit of having unprotected sex. We can surmise this from the ever increasing number of cases of sexually transmitted infections.

We should find a way to prepare a comprehensive plan as to how Norway should tackle all areas of sexual health. This plan must address both the dark and light sides of sexuality and must deal with sexuality throughout our life. Such a plan must aim to enhance the general population’s sexual health, while also dealing with special measures for vulnerable groups with special challenges, such as gay and bisexual men and other men who have sex with men, refugees, asylum seekers and their families.

This could be done by a committee that will have the mandate to prepare an action plan to enhance overall sexual health, including prevention of sexually transmitted infections. The current national strategic plan for improving sexual health is too one-sided by focusing on the prevention of unwanted pregnancies. Such a committee should have representatives of health authorities as well as representatives of relevant groups and relevant organisations.


National Action Plan


There are many HIV-positive people who believe that the National Action Plan ‘Acceptance and Coping, 2009-2014’ is a very important and appropriate plan for HIV prevention efforts. Here are six ministries and several agencies that are committed to comprehensive efforts in HIV-related work by defining objectives and strategic actions in a number of areas. Some of this is already implemented, but much remains to be done, and the recent mid-term conference showed that things are tough and that there is great frustration among the players.

What has been implemented includes the initiation of the first learning and activity courses for people with HIV. This course was developed through a partnership between The Health Information Centre and Department of Infectious Diseases, both at Oslo University Hospital, and the newly established Council for Patients with HIV has also contributed. Here, among other things, the mastery of sex life is an important part. This has been a successful pilot project that is supposed to be a constant for all who are living with HIV, and to all who are diagnosed with HIV, regardless of nationality, ethnicity and sexual orientation. We believe this is an important service for this patient group that until now has received little follow-up beyond the purely medical field. Another important measure implemented under the HIV plan is the training of health professionals who work with people with HIV to assist in their conversations with patients about changes in health-related behaviours, including sexual behaviour. The tool used is a method called motivational interviewing (MI) which increases the patient’s motivation to change. In 2011 almost 100 health professionals participated in such courses organised by the Directorate of Health. More such courses are needed, and these courses should be offered at different levels, so that MI is an integral part of care.

Such courses for both patients and healthcare providers is something that can increase both the efficacy and quality of life for people with HIV and are therefore very important health promotion and HIV prevention measures. Earlier initiation of treatment and increased focus on testing for HIV and other sexually transmitted infections are other measures that work to prevent new infections.

Apart from the above-mentioned exceptions, very few of the other parts of the HIV plan have been completed. Why has this happened? Why has this work come to a standstill? Why have we not managed to achieve several more goals outlined in the plan? Is it due to a lack of real will of the health authorities and other ministries to drive this plan forward? Have they declared themselves satisfied with making a good plan, and then delegated the responsibility for implementation to civil society and health care providers? Success requires national management and monitoring.

The way forward – a new tool offers new opportunities


I believe we have a unique opportunity now to show other countries how HIV and other sexual transmitted infections can and should be dealt with in a constructive and inclusive manner. By focusing on sexual health in general, and for the whole population, we could experience a reduction of HIV and other sexually transmitted infections. We must work to motivate and to inspire each individual and thus safeguard the best interests of society.

It’s a new era that should inspire all who live and work in this field. We know so much more now than when HIV was incorporated into the Penal Code. We have completely different opportunities today to fight this virus, by helping as many as possible to independently maintain their health. This is where we can help to reverse the negative trend we are experiencing nationally, and it will also give us an opportunity to show the way internationally. There are many eyes focused on Norway these days who are most interested in how we choose to move forward with this challenge. We have a responsibility to make this our opportunity to achieve the very best possible outcome.