Global Commission on HIV and the Law: an analysis of their HIV criminalisation recommendations

Today, the Global Commission on HIV and the Law finally issued its long-awaited report, ‘HIV and the Law: Risks, Rights and Health.’  It was well worth the wait.

“Fundamentally unjust, morally harmful, and virtually impossible to enforce with any semblance of fairness, such laws impose regimes of surveillance and punishment on sexually active people living with HIV, not only in their intimate relations and reproductive and maternal lives, but also in their attempts to earn a living.”

That’s how the Chapter 2 of the report, focusing on the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission begins.  The rest of the chapter pulls no punches either.

Of course, the Global Commmission, and the report itself, cover much more than HIV criminalisation, and it pulls no punches recommending repeal of punitive laws impacting consensual same-sex sex, sex work, drug use and patent laws affecting access to HIV treatment.  However, since this blog – and the focus of my work – is specifically about HIV criminalisation I’m only going to focus on the six pages in the report (and five pages of references) that specifically addresses this issue. 

Five recommendations on HIV criminalisation: click on image to enlarge

To cut to the chase, the report recommends the following:

To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:

2.1. Countries must not enact laws that explicitly criminalise HIV transmission, HIV exposure or failure to disclose HIV status. Where such laws exist, they are counterproductive and must be repealed. The provisions of model codes that have been advanced to support the enactment of such laws should be withdrawn and amended to conform to these recommendations.
2.2. Law enforcement authorities must not prosecute people in cases of HIV non-disclosure or exposure where no intentional or malicious HIV transmission has been proven to take place. Invoking criminal laws in cases of adult private consensual sexual activity is disproportionate and counterproductive to enhancing public health.
2.3. Countries must amend or repeal any law that explicitly or effectively criminalises vertical transmission of HIV. While the process of review and repeal is under way, governments must place moratoria on enforcement of any such laws.
2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.
2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.

The first four points are consistent with the 2008 UNAIDS/UNDP Policy Brief recommendations but go further in terms of tone. For example, using “must” rather than “should”.

Point 2.3 on vertical transmission really needs no further explanation and should be implemented immediately. 

But what did the Commission mean by some of the recommendations, which, when you read them from the point of view of a legislator, or someone who can affect policy in the criminal justice system, might not be quite as clear as they could be?

And what about point 2.5 recommending that anyone imprisoned for HIV non-disclosure, potential exposure or non-intentional transmission have their case reviewed?  Although it doesn’t spell out the criteria for review, they should be consistent with the International Guidelines on HIV and Human Rights published by UNAIDS and the Office of the United Nations High Commissioner for Human Rights (OHCHR).  Since 1998 they have recommended that in order for someone to be convicted, “the elements of foreseeability, intent, causality and consent [must be] clearly and legally established to support a guilty verdict….” If we now consider that the Commission recommends that only intentional and malicious transmission should be a crime, if the above criteria have not been met (and in most cases they have not), the Global Commission recommends immediate release from prison, a pardon and removal of criminal records (and in the US and Canada, removal from the sex offender registry).

I asked Professor Matthew Weait, who served as a member of the Technical Advisory Group for the Commission (the TAG), with particular responsibility for HIV criminalisation about how we should interpret recommendations 2.1, 2.2 and 2.4 in the real world.

The excellent working paper that he prepared for the Commission, The Criminalisation of HIV Exposure and Transmission: A Global Review is also now available to download. A second paper, Criminalisation and the Moral Responsibility for Sexual Transmission of HIV by Matthew and his fellow TAG member, Professor Scott Burris is also now available.

Q: In 2.1 Does the Commission only recommend repealing laws that explicitly criminalise non-disclosure, exposure or transmission?  What, for example, does that mean for Canada, which uses general laws to prosecute non-disclosure?

It’s a good question!  Before I answer it, can I emphasise that what I say here should in no way should be seen as reflecting the views or interpretation either of other TAG members, the Commissioners, or the UNDP Secretariat that provided logistical and other support.  They are personal views.  So – with that in mind – I think it’s important to read this Recommendation in the context of the Report as a whole. What is abundantly clear is that the Commission believes that only the actual and deliberate transmission of HIV may legitimately be criminalised, and all the Recommendations need to be read in that light. This means, in my view, that countries which criminalise HIV under their general laws are also being addressed here.  The reason is that in many such countries it is only HIV transmission, exposure and non-disclosure which is prosecuted in the criminal courts under general provisions which could also be used in the context of other diseases.  The fact that other diseases are not, or extremely rarely so, means that HIV is – to my mind – explicitly criminalised.  Just because HIV is criminalised under a general law doesn’t detract from the fact that such criminalisation is explicit in practice.  You’ll have to follow this up with the Commission though!

Q: In 2.2 Does the Commission mean that law enforcement authorities can prosecute for HIV exposure and non-disclosure where there is proof of intentional or malicious transmission?

I don’t think so, no.  The “must not” construction of the Recommendation does not imply the opposite, especially where to read it this way would be against the entire tenor of the Report. It is very important, in my view, that law enforcement authorities do not take this as a “green light” – not only because it would lead to over-criminalisation (belt and braces) – but it would serve no purpose.  

Q: In 2.4 Does the Commission suggest that prosecutions can still take place that aren’t malicious?  How do you prosecute “with care”?

This Recommendation is in permissive language, similar to that used in the UNAIDS 2008 Policy Guidance, and does not – I think this is important – mandate criminalisation as such.  It seems to me to be intended to provide states with a “let out” clause, reflecting the views of many in the wider HIV policy community, and is politically pragmatic and realistic. Some might think it is a unfortunate that this is in a list of Recommendations, but I think I understand why it has been. It might have been better to phrase the Recommendation in the form, “If countries wish to criminalise HIV, they should only do so in cases of actual and intentional transmission”, but I don’t think we should get too hung up on the exact language here. As with the other Recommendations, it has to be read in the light of everything else in the Report, where it is clear that Commission is arguing for the most restrictive approach possible. It will also, by the way, be important to see whether the Report itself addresses in more detail what is meant by intentional and malicious. Different jurisdictions interpret these terms is in a variety of ways – some equating them with knowledge of status, some with knowledge of the risk of transmission, and some with deliberate or purposive intent (or a combination of all these). The fact that the Commission uses the term “malicious” in Recommendation 2.2 suggests that it has in mind deliberate and purposive intention

As for question of pursuing prosecutions ‘with care’, it is clear that the Commission has affirmed what has been emphasised in a number of recent policy documents, including a recent initiative of UNAIDS.  The highest (I would personally have preferred that, rather than “high”) is necessary when dealing with liability based on expert evidence (as transmission cases typically are, at least where the scientific analysis facilities are available).

Catherine Hanssens highlights the problem with US HIV disclosure laws

This morning, the Global Commission held a press conference that featured several of the Commissioners: US Congresswoman Barbara Lee; Canada’s Stephen Lewis (Co-Director and Co-Founder of AIDS-Free World); and His Excellency Mr. Festus Gontebanye Mogae, former President of Botswana.

Three members of civil society also participated: Nevena Ciric, More than Help, AIDS +, Serbia; Maurice Tomlinson, AIDS-Free World, Jamaica and Nick Rhoades, Positive Justice Project, The Center for HIV Law and Policy, United States.

Nick Rhoades spoke with clarity and power about the lessons learned from his own terrible experience. HIV criminalisation wastes money, harms prevention and human rights, he concluded. Return sanity, science and justice to HIV laws.

I was convicted in 2008 under Iowa’s law titled “criminal transmission of HIV” although HIV was not actually transmitted.  This involved a one-time, consensual sexual encounter with another adult.  My viral load was undetectable, I used a condom – and again, I did not transmit HIV.  However, none of these facts mattered in the eyes of the law.  The judge imposed the maximum sentence of 25 years in prison and the requirement to register as a sex offender for the rest of my life.  After sentencing, the judge was subject to a significant amount of pressure from advocates in the U.S. and even Europe – requesting my sentence be reconsidered.  After being incarcerated for over a year, he released me on five years probation, but I am of course, still a sex offender. [Nick is now appealing his conviction.]

During my course through the correctional system, I transferred facilities four times.  Each time I was transferred, I would be either without medications or missing certain medications for a period of days. And when I was released, I had lost my place on the AIDS Drug Assistance Program, so I was put on a wait-list. The correctional system offered no assistance in finding a social worker or medication assistance once I was released from prison.

The personal toll this has taken on me and my family and friends cannot be measured.  This has caused great mental anguish, financial burdens and major professional barriers for me, now that I am a sex offender.  I have been virtually unemployable.  I am fortunate enough now to be employed from home by The Center for HIV Law & Policy, but most aren’t so lucky.  To this day, I deal with terrible depression.  It’s not easy.

What’s more, the price to enforce these archaic laws is considerable.  The approximate cost to tax-payers to incarcerate just one individual in Iowa – factoring in the cost of medications and routine medical care is approximately sixty-five to seventy thousand dollars annually. This cost is borne by tax-payers and doesn’t include the lost income and contribution to society that incarceration causes. Then consider the price to supervise people convicted under these laws while on probation or parole – often being forced to add in the costs of monitoring offenders on the sex offender registry – and the public is paying an incredible amount of money for enforcing laws that, more often than not, are punishing people for not transmitting HIV.  In many cases, such as mine, taxpayers are paying for the enforcement of laws that punish people with HIV who actually follow the primary prevention messages of public health counselors: stay in treatment, keep your viral load as close to undetectable as possible, use condoms – and otherwise, keep sex safe[r].

These laws enhance stigma that cripples people living with HIV/AIDS from accessing services. They make disclosure issues much more difficult due to ramifications one may face with a mere accusation. I also believe stigma, made thicker by these laws, is keeping people from getting tested.

Furthermore, I have been a member of the Iowa HIV Community Planning group – chaired by the Iowa Department of Public Health – since 2009.  I see all the data.  This year, the Iowa Department of Public Health’s prevention-based budget faced a 25% decrease which will eventually grow to 55% over the next five years. Dollars marked to treat people in care are next for slashing.  Those in care and with undetectable viral loads are up to 96% less likely to transmit the virus, yet we are cutting funding away from proven HIV prevention programs while increasing costly prosecution and imprisonment of people like me living with HIV.  When one considers that there is no evidence that these laws have any impact on people’s sexual behaviors, it is clearly not an effective use of our resources while infringing on individuals’ human rights and working in conflict with public health goals.

Criminal laws and policies that target people based on their HIV status must be repealed.  Please support Congressperson Barbara Lee’s “Repeal HIV Discrimination Act” now, and engage with those who are promoting the movement to return sanity, science and justice to the law’s treatment of HIV.

Following Nick’s powerful testminony, much of the rest of the Global Commission press conference mostly focused on HIV criminalisation in the US and Canada – as it should since the vast majority of prosecutions take place in these two countries, a fact highlighted by Stephen Lewis and echoed by Nick Rhoades.

I was very honoured to be quoted in the report.

I asked Rep. Barbara Lee how it is posssible to change these bad laws when it appears that they have popular support. “Modernising these laws won’t be easy,” she said. “But I have to tell you that the public isn’t really aware of these laws. Once you explain it to them, they’re shocked. What we have to do is mount public education campaigns about these laws. At state level, many state legislators don’t know these laws are on the books, and they can change them if there is the political will. So we need public and political education and civil society support for a political movement to hold politicians accountable. But… yes we can!”

As for other countries using general criminal laws to prosecute non-disclosure, potential exposure and transmission, in the next few months UNAIDS will be releasing a policy consideration document that will help countries understand exactly how to limit their application through a better understanding of HIV science as well as public health and human rights principles. 

There’s going to be a lot more happening around the Global Commission’s Report and all of the amazing evidence the Commission accrued during it’s two year existence.  I recommend spending time on the Global Commission website where you will now find a treasure trove of documents to help further anti-criminalisation advocacy and eventually lead to HIV justice for all.

Greece: Matthew Weait on the moral panic over the mass arrest of female sex workers with HIV

Matthew Weait, Professor of Law and Policy at Birkbeck College, University of London guest blogs on Wednesday’s arrest of 17 HIV-positive women who allegedly worked illegally as sex workers.  Greek authorities are accusing them of intentionally causing serious bodily harm. 

The arrest in Athens of 17 female sex workers living with HIV this week is outrageous on many levels. It is not that a significant number of them have had their right to respect for private life violated (12 had their photographs published on a police website), nor that there is uncertainty as to whether the women concerned knew their HIV status, nor that the women were arrested after a screening process by the Greek Centre for Disease Control (how voluntary was that, I wonder?), nor that they have been charged with intentionally causing grievous bodily harm (a charge almost impossible to prove, and on the facts arising simply from having unprotected sex with clients – according to news reports it is unclear whether any clients have actually been infected as a result of sex with the women concerned). All these things are bad enough, but what is really appalling is the way in which it is the women who have been identified as the legitimate locus of control and the subject of punitive state response.

It is appalling, but it is entirely to be expected. There is a long and ignoble tradition of locating the source of STIs in women in general, and female sex workers in particular. In the context of HIV criminalization this tradition has reached a new peak (or, perhaps better, a new trough). Put simply, HIV criminalization has compounded, and added a new and frightening dimension to, the longstanding idea that female sex workers are a source of pollution threatening the cleanliness of men. It is not just that by identifying them as the risk and the cause of any harm men may suffer, the men concerned (and men in general) are able to divert attention from their own responsibility (though this is important), it is that criminalization has provided an opportunity, in this context, to reinforce the idea that women are inherently dirty, that HIV is dirty, and that cleansing (what a frightening word that is) through punishment, containment and deportation (the women in Athens were foreign nationals) is a reasonable and justifiable response.

Of this logic we should be very afraid. The elimination of dirt at a political level has found expression, at its most extreme, in the slaughter of the Jews by the Nazis, in the apartheid regime of South Africa, in eugenic science and rules relating to miscegenation. It is evident in any attempt by a society to maintain its ‘purity’ by imposing border controls that require would-be immigrants to undergo tests that filter out the sick and unhealthy.

At an individual level, the elimination or exclusion of dirt – or rather the practices, attitudes and response mechanisms that attempt to achieve this (prosecution, imprisonment, deportation) mirror a wider political project in which the HIV positive body is punished, marginalised and devalued because it represents everything that is feared in post-modernity. The HIV positive body is a paradigm site for repressive legal and political response because of its capacity to reproduce itself in the body of those for whom it represents a threat to physical and ontological security, and because that reproduction occurs – and can only occur – through the merging of bodies via the co-mingling of their ‘inside’. Elizabeth Grosz, an Australian feminist theorist has put this better than anyone else when she explains that:

Body fluids attest to the permeability of the body, its necessary dependence on an outside, its liability to collapse into this outside (this is what death implies), to the perilous divisions between the body’s inside and its outside. They affront a subject’s aspiration toward autonomy and self-identity. They attest to a certain irreducible ‘dirt’ or ‘disgust’, a horror of the unknown or the unspecifiable that permeates, lingers, and at times leaks out of the body, a testimony to the fraudulence or impossibility of the ‘clean’ and ‘proper’. (Grosz, 1994: 193-4)

For Grosz, it is women’s bodies, their unstable and destabilizing corporeality, that serve both to affirm men’s belief in their own inviolability and, thus, the bounded body (i.e. male bodies) as the normal, universal and legitimate form of subjectivity. The seminal flows that emit from male bodies, reduced to a by-product of sexual pleasure rather than conceived as a manifestation of immanent materiality, and as something that is directed, linear and non-reciprocal, enables men to sustain the fantasy of the closed body and of the possibility of control over it. The socio-cultural and psychological dimension of Mackinnon’s (in)famous assertion about the power necessarily instantiated in heterosexual relations (‘Man fucks woman: subject verb object’ (Mackinnon, 1982: 541), this fantasy is a prerequisite for the maintenance of masculinity, and of the mastery – over women, over nature – that masculinity enables, or which is its prerogative.

To receive flow, or to be in position where there is a risk of flow in the other direction, is to be identified with the feminine (whether as woman, or as passive homosexual) and to lose the phallic advantage; to acknowledge the essential materiality of the body, that its flows are not merely by-products of the body but constitutive of it, is an admission that strikes at the heart of masculinity, at the security which is its privilege, and at the legitimacy of the hierarchised and gendered socio-economic order upon which its privileged status depends. Understood in these terms, it is unsurprising that it is women’s bodies (despite the relatively low risk of female to male sexual transmission) that are – within the discourse that frames the heterosexual HIV epidemic– characterised as the source of infection. As Grosz explains, this discourse is one that makes

… women, in line with the conventions and practices associated with contraceptive procedures, the guardians of the sexual fluids of both men and women. Men seem to refuse to believe that their body fluids are the ‘contaminants’. It must be women who are the contaminants. Yet, paradoxically, the distinction between a ‘clean’ woman and an ‘unclean’ one does not come from any presumption about the inherent polluting properties of the self-enclosure of female sexuality, as one might presume, but is a function of the quantity, and to a lesser extent the quality, of the men she has already been with. So she is in fact regarded as a kind of sponge or conduit of other men’s ‘dirt’. (Grosz, 1994: 197)

Given Grosz’s analysis it is hardly unsurprising that the Centre for Disease Control in Greece had 1500 calls from concerned men once the story about the brothels broke. Far from accepting any responsibility they might have for having sex which carried the risk of STI and HIV infection, it was entirely to be expected that their concern was whether the women might have infected them, and that the legal response was to round up the women. Patriarchy is, after all, a Greek word.

The response of the Greek health Minister, Andreas Leverdos, prompted in part by a massive rise in HIV infections in Greece in recent months (954 new infections were reported in 2011, a 57 percent increase from the previous year), and also – surely – by the political value in deporting non-nationals at a time when Greece is in economic meltdown, was to suggest criminalizing unprotected sex in brothels. He is reported as saying,

 Let’s make this a crime. It’s not all the fault of the illegally procured woman, it’s 50 percent her fault and 50 percent that of the client, perhaps more because he is paying the money.

On the face of it this response suggests some recognition of shared responsibility. However, it is a pipe-dream – I suggest – to imagine that doing this (even if it were politically viable, which I doubt) would have the effect of eradicating the deeply entrenched view that female sex workers are to blame for their clients ills; nor is criminalization of sexual behaviour that carries the risk of HIV infection a productive or constructive answer to anything. It would simply perpetuate the idea that punitive laws are an appropriate response to what is properly understood as a public health issue that should be addressed through wider awareness, education and an affirmation of the importance of taking care of, and respecting, ourselves and others.

(Reposted from Matthew Weait’s own blog, ‘The Times That Belong To Us’ with kind permission. You can also follow Matthew on Twitter @ProfWetpaint)

Edwin J Bernard: Where HIV Is a Crime, Not Just a Virus (AIDS 2010)

Edwin J Bernard presents a global overview of laws and prosecutions at the XVIII International AIDS Conference, Vienna, 22 July 2010.

Abstract: Where HIV is a crime, not just a virus: a global ranking of prosecutions for HIV non-disclosure, exposure and transmission.

Issues: The global (mis)use of the criminal law to control and punish the behaviour of PLHIV was highlighted at AIDS 2008, where Justice Edwin Cameron called for “a campaign against criminalisation”. However advocacy on this vitally important issue is in its infancy, hampered by lack of information on a local, national and international level.

Description: A global overview of prosecutions to December 2009, based on data from GNP+ Global Criminalisation Scan (criminalisation.gnpplus.net); media reports collated on criminalhivtransmission.blogspot.com and WHO Europe pilot human rights audit. Top 20 ranking is based on the ratio of rate per year/per HIV population.

Lessons learned: Prosecutions for non-intentional HIV exposure and transmission continue unabated. More than 60 countries have prosecuted HIV exposure or transmission and/or have HIV-specific laws that allow for prosecutions. At least eight countries enacted new HIV-specific laws in 2008/9; new laws are proposed in 15 countries or jurisdictions; 23 countries actively prosecuted PLHIV in 2008/9.

Next steps: PLHIV networks and civil society, in partnership with public sector, donor, multilateral and UN agencies, must invest in understanding the drivers and impact of criminalisation, and work pragmatically with criminal justice system/lawmakers to reduce its harm.

Video produced by georgetownmedia.de