US: Laws should not penalise marginalised populations that might lack access to drugs, instead HIV exposure should be decriminalised altogether unless there was clear intent to infect someone

Sex with HIV still a crime? Updated laws divide advocates

ATLANTA (AP) — As Sanjay Johnson describes it, his sexual encounter with James Booth on Oct. 2, 2015, was a one-night stand. But it would bind the men inextricably two years later, when Booth walked into an Arkansas police station and accused Johnson of exposing him to HIV.

Little Rock prosecutors pursued a criminal charge against Johnson even though a doctor said he couldn’t have transmitted HIV to Booth because he was on medication that suppressed his virus.

“It really tested me just to keep going,” Johnson said about his criminal case, which ended this year. “Last year, I thought of suicide.”

Booth said he deserved to know about Johnson’s HIV status regardless of any medical treatment.

“I could have protected myself,” he said.

Roughly 20 states have laws like the one in Arkansas that make it a crime for people with HIV to have sex without first informing their partner of their infection, regardless of whether they used a condom or were on medication that made transmission of the disease effectively impossible.

Health experts and advocates for HIV patients say that rather than deterring behavior that could transmit the virus, such laws perpetuate stigma about the disease that can prevent people from getting diagnosed or treated.

North Carolina and Michigan recently updated their HIV policies to exempt HIV patients from prosecution if they’re on medication that has suppressed their virus. A Louisiana law that took effect in August 2018 allows defendants to challenge a charge of exposing someone to HIV by presenting evidence that a doctor advised them they weren’t infectious.

Many advocates say the new policies create an underclass of people who lack access to drugs and are therefore still vulnerable to prosecution. They say states should instead decriminalize HIV exposure altogether unless the person intends to infect someone.

“We shouldn’t be creating laws that create additional strata and divisiveness among already marginalized populations,” said Eric Paulk, deputy director of Georgia Equality.

The fight comes as the Trump administration aims to eradicate HIV — the virus that causes AIDS — by 2030.

The laws’ defenders point to statistics showing tens of thousands of new HIV diagnoses each year and say that although the disease may not be a death sentence anymore, it still requires a lifetime of expensive medical treatment.

The Arkansas attorney general’s office filed a brief last year in Johnson’s case rejecting the argument that criminalizing HIV exposure no longer served any purpose.

“HIV remains a serious threat to public health,” it wrote.

In Booth and Johnson’s case, they met through a gay dating app.

According to Booth, Johnson denied he was HIV positive before they had unprotected sex. Johnson, 26, said he didn’t remember discussing his HIV status.

A plea deal that prosecutors offered Johnson shows officials were mindful of advances in the science around HIV, said John Johnson, chief deputy prosecutor in Pulaski County. The deal allowed the accused man to avoid prison time and have his record expunged.

But prosecutors also wanted to promote the importance of disclosing HIV to potential sexual partners, he said.

“The flip side of this coin is that there is a victim to this crime,” the prosecutor said.

People with HIV who are on antiretroviral drugs that keep their viral load below a specific threshold have “effectively no risk” of transmitting HIV, according to the federal Centers for Disease Control and Prevention. But as of 2016, only a little more than half of the estimated 1.1 million people living with HIV in the U.S. were virally suppressed, the CDC says.

Sarah Lewis Peel, spokeswoman for North Carolina’s Department of Health and Human Services, said in an email that her state’s new policy ensures HIV prevention and control strategies are “firmly rooted in science.” Responding to criticism that the change leaves some people behind, she listed multiple programs that cover HIV medication.

Critics say states should decriminalize HIV exposure altogether unless there’s intent to infect someone. That would reflect the reality that HIV is manageable and not easy to contract, dozens of advocacy groups said in a July 2017 consensus statement.

Georgia may be headed in that direction. Pending legislation would require intent to transmit HIV for a prosecution.

It’s not clear how many people have faced prosecution under HIV laws around the country, but data from two states analyzed by a think tank at the University of California, Los Angeles, School of Law indicate they aren’t isolated occurrences. Florida and Georgia authorities made nearly 1,500 arrests on suspicion of HIV-related crimes from the 1980s through 2017, hundreds of which resulted in convictions, according to the Williams Institute.

Booth said he tested positive for HIV after his encounter with Johnson. Johnson’s doctor, Nathaniel Smith, told The Associated Press that Booth couldn’t have contracted HIV from Johnson because a lab test around the time of their encounter showed Johnson’s viral load was too low. Smith, who testified in Johnson’s case, also directs the Arkansas Department of Health.

Johnson pleaded no contest in February to aggravated assault as part of his deal with prosecutors and was sentenced to five years’ probation. He would have faced up to 30 years behind bars and the possibility of having to register as a sex offender had a jury convicted him of the HIV-exposure charge.

He has a new job helping people manage their diets but said his arrest and prosecution left a scar.

“It did make me more closed off,” he said.

Booth said he has sympathy for what Johnson went through but stands by his decision to tell police.

“It was something that needed to be done,” he said.

Jamaica: “Criminalisation related to HIV is a seductive distraction from what we really should be focusing on”

Is Criminalising HIV Helpful?

According to the 2017 Knowledge, Attitudes and Behaviour Survey by Jamaica’s Ministry of Health, one out of every five persons with multiple sexual partners never used a condom the last 10 times they had sex.

Fortunately, due to certain features of HIV and of our immune system, HIV does not always get transmitted every time someone is exposed. According to a top scientific journal, there is a one in 300 chance of the virus being passed from a man with HIV to a woman during sex. The overall risk goes up with each additional sexual act. The possibility exists that infection can occur the first time you have sex. The risk increases in certain situations, including the presence of sexually transmitted infections like syphilis and the time period just after becoming infected.

Avoiding HIV testing, some persons wrongly presume themselves to be infected based on the possibility that they had been exposed, or they wrongly presume themselves to be negative if a partner tests negative. No public-health initiative, indeed no law, obviates the importance of individuals taking responsibility for their health, embracing their right to pleasurable sex, yes, and empowered to seek out accurate information, getting tested regularly, and using protection.

Because we have become so accustomed to all the things that are wrong with our health system and legal system, we assume a state of powerlessness and thereby continue to embrace the status quo. Unfortunately, the set-up of some clinics is such that your diagnosis is made obvious by virtue of walking into a particular room.

The absence of anti-discrimination laws contributes to unfair treatment of persons living with HIV who are pressured out of their jobs, with a downhill spiral of their economic and health status. There is increasing access to redress for those who experience discrimination, and stigma from healthcare workers may be decreasing, but not nearly enough. The implementation of evidence-based prevention measures is slow, and I am hard-pressed to think of anything that could justify the withholding of such measures, especially in light of the fact that HIV infections have not stopped, many persons with HIV are deterred from accessing treatment, and majority of those in care have not attained optimal health status.

Criminalisation related to HIV is a seductive distraction from what we really should be focusing on.

INTERNATIONAL PRECEDENTS

In Scotland, a 20-year old man was convicted based on similarities in the genetics of HIV in his blood sample and his wife’s sample. His wife had reportedly contracted HIV from him during sexual intercourse in the two to three months right after he had become infected during a prior incarceration. The risk of transmitting HIV is 30 times greater in the first few weeks of becoming newly infected due to the large amount of HIV circulating in the body before the immune system manages to get a temporary hold on this new germ.

In Canada, a man was convicted under existing laws, charged with assault with a deadly weapon, after having sex without a condom with at least two women, despite a nurse’s insistence that he should disclose his HIV status. The Crown found that under Section 268 of Canada’s Criminal Code, the man’s sexual partners’ lives had been endangered, and no transmission needed to have actually occurred.

More than 60 countries have had prosecutions related to exposure, non-disclosure or transmission of HIV. One-half of these countries have done so under pre-existing laws, the others under specific legislation related to HIV. Adequate protection and remedies can be found in existing criminal laws, and the stigma of HIV-specific criminalisation can be avoided.

PUBLIC HEALTH AND THE LAW

Jamaica’s Joint Select Committee to review the Sexual Offences Act recommended that the law “should be amended to make it a criminal offence for someone to wilfully or recklessly infect a partner.” Concerns have been voiced as to whether criminalising HIV transmission will discourage persons from knowing their status.

According to researchers at the University of Edinburgh, a 25 per cent drop in HIV testing could result in a 50 per cent increase in HIV infections. Persons may be deterred from testing as they may believe that not knowing their status means that they are not at risk of being charged under the proposed law.

Although testing may be available virtually everywhere, stigma and privacy concerns are serious impediments to HIV testing being truly universally accessible.

During discussions, it is not always clear what exactly it is being proposed should be criminalised. What is the evidence to be relied on to prove that transmission occurred from person A to person B? Techniques for proving transmission from one person to another still require standardisation, are costly, and not widely available.

SCIENCE AND THE LAW

Another concern is whether a laboratory could be served a warrant, demanding that it hand over blood samples from patients. It may be possible to deduce ‘clusters’ of individuals linked by similarities in the genetic make-up of the HIV virus. Based on such clusters, individuals could become stigmatised based on assumptions that they belong to a particular social sexual network, for example, sex work or intravenous drug use, be it true or not. Information about the genetic make-up of a human being can be deduced based on unique ‘footprints’ left on the virus by an individual’s immune system.

Currently, this may seem like innocuous information, but if a particular genetic feature is subsequently found to be linked to one’s risk for cancer or lifespan, for example, one can imagine this information being (mis)used to influence insurance premiums or reproductive decisions.

Further, there is scientific proof that HIV is not transmitted from someone living with HIV who sticks to their antiretroviral medications resulting in totally suppressed HIV virus to the point where it is undetectable in the blood and semen and other body fluids.

The World Health Organization has adopted this as an important strategy in stopping the HIV epidemic. There remains room for improvement in raising awareness of these positive developments among patients, clinicians, and advocates, not to mention lawmakers.

Discussions about criminalisation of HIV can easily fall trap to fearmongering. A fundamental question is whether such legislation is helpful or would pose a hindrance to getting the thousands of Jamaicans who do not know their status to test and to retaining those who are receiving care.

[The views expressed are my own, and not necessarily those of any affiliate past or present.]

Dr White is medical director at Para Caribe Consulting Medical Doctors. Email feedback to yourhealth@gleanerjm.com and yohann.white@caribewellness.com; Social Media: @CaribeWellness.

Meredith McFadden explores the ethical issues of criminalising health statuses

The Criminalization of HIV Transmission and Responsibility for Risky Behavior

Michael Johnson was released from prison on July 9th after serving five years of his original sentence of thirty years. He was in prison for failing to disclose his HIV status to his sexual partners and his sentence was longer than the state average for murder. The conviction covered transmitting HIV to two men and exposing four more to the virus, despite “an absence of genetic fingerprinting to connect him to the other men’s HIV strains.”

Johnson’s trial highlights the racist and homophobic undertones of the continued fear around HIV exposure. The images shown to the jury emphasized the darkness of Johnson’s skin, his muscularity (he was a star football player), and that two-thirds of the allegedly exposed men were white. The racist stereotypes regarding the sexuality of black men hurt Johnson’s chances in this trial, which were already slim given cringe-worthy missteps by his court-appointed public defender who claimed her client was “guilty until proven innocent.”

In the years since the trial and conviction, Johnson’s case has been a focal point of the discussion of the sexualization of black bodies and the inherent racism and homophobia in our criminal justice system. HIV criminalization laws disproportionately affect non-straight black men. Beyond these issues of justice, there is also the family of questions of the ethics surrounding sexual health. Johnson’s case is one of many where sexual relationships and health statuses are interpreted criminally, and the laws surrounding HIV transmission are not structured to reflect current empirical understandings of how the disease spreads.

Empirical evidence regarding HIV criminalization laws suggests that having such laws do not affect disclosure of HIV status to partners or decrease risk behaviors. A key component to the sexual ethics debate, arguably, is that people who are HIV positive can be treated to the point that it is an empirical impossibility that they transmit the virus to sexual partners. When medicated, people with HIV can have an undetectable viral load, which means that there isn’t enough of the virus in the person’s system to turn up on standard tests. This makes it basically no more likely for them to transmit HIV to their partners than a partner without HIV.

In light of this empirical reality, how should we ethically understand the risk of sexual behaviors? In recent years, some states have taken steps to make their laws more in line with the health reality of HIV transmission in particular: California has a bill that lessens the offense of knowingly transmitting HIV to a misdemeanor and a similar bill has been proposed in North Carolina. An attorney from the office that originally prosecuted Johnson in Missouri has become a supporter of a recent failed bill that would reduce punishment for knowingly expose someone to HIV in that state.

Knowingly exposing someone to risk is an ethically interesting area. There are cases where we knowingly expose people to risks and it seems ethically unproblematic. A bus driver exposes their passengers to risk on the road. A tandem jumper exposes their client to risk diving out of a plane. A friend exposes a guest to risk cooking for them, in operating ovens, in attempting to achieve safe temperatures and adequate freshness of ingredients.

There are two major ethical principles at work here, because knowingly exposing someone to risk is putting them in a position of potential harm. Serving a dinner guest a meal that you have reasonable expectations of harming them is an ethically problematic action, and we would hold you responsible for it.

In similar yet ethically unproblematic cases, it could be that the case satisfies an ethical principle of respecting someone’s autonomy – the person consented to take on the risk, or the risk is part of their life-plan or set of values. For example, your guest would have to consent to the risk if you are serving your guest the famed potentially poisonous fish dish from Japan, fugu, where the smallest mistake in preparation could be fatal.

Another scenario where posing potential harm to someone could be unproblematic is under circumstances where the risk is so minimal or typical that if harm were to result, we wouldn’t consider another morally culpable. If you are serving dinner to a group of people buffet-style in the winter, this increases everyone’s to the risk of catching colds and flus from one another but typically we don’t’ take this to be ethically problematic. These two principles are at play when considering the risk of sexual behaviors.

There are reasons to take on risks to one’s health and well-being, and we

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion”

Charting progress against discrimination

Laws discriminate in many ways, but the criminalization of people is one of the most devastating forms of discrimination. Despite calls for reform and the commitments under the 2030 Agenda for Sustainable Development to remove discriminatory laws and reduce inequalities:

Sixty-nine countries still criminalize same-sex sexual relationships.
More than 100 countries criminalize drug use or the personal possession of drugs and 98 countries criminalize some form of sex work.
One in five people in prison are there because of drug-related crimes and 80% of those are there for personal possession or use.
Nineteen countries deport non-nationals on the grounds of their HIV status.

A high-level political forum is meeting in New York, United States of America, from 9 to 18 July to review the progress made against the commitments of Member States towards achieving the Sustainable Development Goals, including those on inequality and on peace, justice and strong institutions.

“As a judge, I have seen the effect that criminal law can have on communities. It takes people outside systems of protection, declares their actions or identity illegitimate, increases stigma and excludes them from any protections our judicial, social and economic systems may provide,” said Edwin Cameron, Justice of the Constitutional Court of South Africa.

Criminalization affects access to health services, housing, education, social protection and employment. The criminalization of same-sex sexual relationships, sex work or drug use prevents people from accessing health-care services, including HIV prevention, testing and treatment. Data show that gay men and other men who have sex with men are 28 times more at risk of HIV than the general population, people who inject drugs are 22 times more at risk and sex workers and transgender women are 13 times at risk.

“To fully implement the Sustainable Development Goal agenda and make sure that no one is left behind, we need to ensure the laws are protecting people from discrimination and not pushing people into hiding from society,” said Lloyd Russell Moyle, United Kingdom Member of Parliament.

Groups that represent criminalized people are often barred from registering as nongovernmental organizations, and, for example, sex workers often can’t unionize. Propaganda laws may mean that information on, for example, HIV prevention can’t be disseminated.

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion. We have an opportunity to harness the lessons from the AIDS movement and place rights and the meaningful participation of the most marginalized at the centre of the response,” said Luisa Cabal, Director for Human Rights and Gender, UNAIDS.

Criminalized groups often experience higher rates of violence than the general population. Victims of violence who are also criminalized often can’t report crimes against them to the police, and lawyers risk violence and other repercussions if they take up their cases.

“Discrimination against and criminalization of people living with HIV still continues to this day. And we are facing in Indonesia persistent stigma against and criminalizing of key populations. We will never end AIDS if we are not making their needs and rights a top priority for access to health care, protection against violence and realization of the right to health,” said Baby Rivona, from the Indonesian Positive Women Network.

Countries that decriminalize drug use and make harm reduction services available have seen reductions in new HIV infections. Evidence shows that decriminalizing sex work could avert between 33% and 46% of new HIV infections among sex workers and clients over 10 years. However, reductions in new HIV infections are not the only outcome—other outcomes include improvements in well-being and trust in law enforcement, reductions in violence and increased access to health-care and support services. Above all, however, decriminalization of people results in them no longer being seen as criminals and stigmatized by society.

US: Closing session of CDC's national HIV Prevention conference highlights stigma and HIV-specific criminalisation laws as barriers to improving outcomes in prevention and care

HIV Stigma in Focus at Closing Session of CDC’s National HIV Prevention Conference

HIV-related stigma and its impact on HIV-related health disparities were the topic of the final plenary session at CDC’s National HIV Prevention Conference. The March 21 session examined social and cultural factors that have contributed to stigma as well as efforts to combat the effects of HIV-related stigma on specific populations. Moderator Johanne Morne, director of the New York State Department of Health AIDS Institute, reminded the conference participants that stigma is an historic and continuing theme that must be addressed to improve outcomes along both the HIV prevention and care continuums.

HIV Stigma and What Can Be Done to Combat It

Greg Millett, vice president and director of public policy at amfAR, delivered the keynote address, “Progress: Same or Different? HIV Stigma at 37.” He noted that while many of the most extreme forms of stigma from the early days of the HIV epidemic have dissipated over time, inaccurate beliefs about the HIV risk of casual social contact persist.

Such stigmatizing beliefs are supported by societal factors such as HIV criminalization laws, Mr. Millett said. He pointed to the fact that 29 states still have HIV-specific criminalization laws on the books and while over 800 people have been prosecuted using these laws, none of the prosecutions were for any actual HIV transmission. He highlighted a CDC assessment that found that HIV criminalization laws have no detectable HIV prevention effect given there was no association with HIV diagnosis rates or AIDS diagnoses in states with such laws.

Further, he observed that not only are people with or at risk for HIV too often stigmatized, but the effective tools to prevent HIV such as PrEP are also stigmatized. A recent study found that individuals who experienced a high degree of stigma around their choice to use PrEP were 50% less likely to be on PrEP at their next clinical visit. Additionally, he pointed to syringe services programs (SSPs) that are known to reduce the risk of HIV transmission among people who inject drugs. Yet, stigma related to both HIV and people who use drugs limits public support for SSPs, limiting their expansion in many communities that could benefit from them, he said.

One factor that may enable this enduring stigma, Mr. Millett posited, is Americans’ lack of personal knowledge of people living with HIV. A Kaiser Family Foundation study found that only 45% of Americans say they know someone with HIV. To counter that, he encouraged more people living with HIV to be open about their status since that would contribute to stigma reduction. He also applauded creative efforts from the HIV community to combat stigma. These included public announcements by people living with HIV of their status on social media, anti-stigma campaigns, and even a series of social media videos about living with HIV.

Combatting HIV-related Stigma and Improving Outcomes for Specific Populations

A series of presentations followed, each discussing unique approaches to combating HIV stigma and offering recommendations on how to help reduce it to improve HIV prevention and care outcomes.

Daniel Driffin, co-founder of THRIVE SS, discussed building innovative, community-driven solutions to address HIV disparities among African American men living with HIV. Originally founded as a support group in Atlanta, the program has grown to an online platform that engages and offers support to more than 3,500 people across the southeast United States. Among THRIVE SS’s innovations are programs to re-engage and retain men in HIV care, a mental health group, and a photo campaign. Mr. Driffin shared results of a 2018 program participant survey that revealed that 92% of the men surveyed self-reported being virally suppressed. “Black men living with HIV are achieving viral suppression,” Mr. Driffin declared. “I challenge you to no longer say these men are ‘hard to reach.’” His advice for others seeking similar outcomes included: using the lived experiences of people living with HIV to inform HIV care and prevention, re-imagining everything, and supporting community-created approaches.
Omar Martinez, assistant professor at Temple University’s School of Social Work, examined HIV-related stigma among sexual and gender minority Latinx individuals. He observed that members of this community often experience stigma related to many aspects of their lives including culture, language, and immigration status, all of which impact their HIV risk. Dr. Martinez profiled several programs that have demonstrated success, including a number that engage non-traditional partners or that address legal and other needs. He advised stakeholders to focus on affirming models of care; to examine immigration status as a social determinant of health; and to continue to invest in the development and replication of “locally-grown” HIV prevention, treatment, and anti-stigma interventions that have proven effective.
Gail Wyatt, PhD, professor and director of the UCLA Sexual Health Program, discussed HIV stigma and disparities among African American women, reminding the audience of the importance of the inclusion of women’s perspectives in HIV prevention, care and treatment, and research. She discussed the impact of trauma on women’s health-seeking behaviors and treatment retention. She emphasized that an effective HIV response requires attention to holistic health, including mental health, to improve outcomes for women living with HIV. She also argued that some health care providers need to be re-educated about African American women given that many have biases about Black women that may hinder their delivery of effective health care services.
Cecilia Chung, co-director of programs and policy at the Transgender Law Center, shared her personal story as an Asian transgender woman living with HIV and discussed the power of personal storytelling to change hearts. She remarked, “Storytelling can help us get past differences, stigmas, and biases, and humanize individuals.” Being able to confidently tell one’s story affects the listener and also empowers the storyteller as they move forward on their path as a person living with HIV.

Dr. Eugene McCray, Director of CDC’s Division of HIV/AIDS Prevention, closed the session, thanking the participants from across the nation and the more than 500 of them who had shared results of their work with others in sessions, poster presentations, and exhibits during the conference. He noted that CDC was pleased to have been able to share more details of the Ending the HIV Epidemic Plan through several plenary session addresses and in a community engagement session. Implementing that Plan, he observed, will require ongoing dialogue and collaboration. With the powerful tools now available, the insights that data offer, leadership from all sectors, and community-driven and -developed plans, Dr. McCray indicated that he was confident that the nation could achieve the goal of reducing new HIV infections by 90% in ten years.

To view all or part of this plenary session, view CDC’s National Prevention Information Network video of Wednesday’s plenary session on their Facebook page .

Webinar: Molecular HIV Surveillance (PWN-USA, 2019)

PWN’s Barb Cardell’s webinar on Molecular HIV Surveillance and its implications for marginalized communities living with HIV, including intersections with HIV criminalization.

New report from the Global Commission on HIV and the Law states that discrimination and punitive laws hamper the global HIV response

Bad laws and discrimination undermining AIDS response

AMSTERDAM, July 22 – Discrimination against vulnerable and marginalized communities is seriously hampering the global effort to tackle the HIV epidemic according to a groundbreaking new report by the Global Commission on HIV and the Law. Despite more people than ever before having access to antiretroviral treatment, the new report emphasizes that governments must take urgent action to ensure rights-based responses to HIV and its co-infections (tuberculosis and viral hepatitis). The new report comes on the eve of the biannual global AIDS conference, which is taking place in Amsterdam.

The Global Commission on HIV and the Law – an independent commission convened by UNDP on behalf of UNAIDS – operates with the goal of catalyzing progress around laws and policies that impact people affected by HIV. In 2012, the Commission highlighted how laws stand in the way of progress on AIDS while citing how to institutionalize laws and policies that promote human rights and health. The 2018 supplement to the Commission’s original report assesses new challenges and opportunities for driving progress on HIV, tuberculosis and viral hepatitis through evidence and rights-based laws and policies.

“Progress on tackling the AIDS epidemic shows that when we work together we can save lives and empower those at risk,” said Mandeep Dhaliwal, the Director of Health and HIV at UNDP. “However, the new report is also a warning that unless governments get serious about tackling bad laws, the overall AIDS response will continue to be undermined and we will fail those who are left behind.”

For the past six years, the Global Commission has made clear how marginalized groups are continually left behind in the global HIV response. Men who have sex with men, people who use drugs, transgender people and sex workers face stigma, discrimination and violence that prevents their ability to receive care, and LGBT populations are still under attack in many countries around the world.

Young women and adolescent girls are also uniquely affected by HIV and are not receiving adequate care. In 2015, adolescent girls and young women comprised 60 percent of those aged 15 to 24 years living with HIV and almost the same percentage of new HIV infections were among this cohort. Sexual and reproductive health care, including HIV testing and treatment, have consistently been kept out of the hands of the women and girls who need them.

“Global politics are changing, and repressive laws and policies are on the rise,” said Michael Kirby, former Justice of the High Court of Australia. “In recent years, political trends have negatively impacted the global HIV response: civic space has shrunk, migrants don’t have access to health care, and funding has dropped.”

The report warns that shrinking civil society space due to government crackdowns is hampering the HIV response as marginalized groups are seeing key health services cut off. The fight against HIV, tuberculosis and viral hepatitis will only be won if civil society is empowered and able to provide services, mobilize for justice and hold governments accountable.

“In the wake of the ongoing global refugee crisis, borders have tightened and access to health services has been restricted for millions of migrants – exactly the opposite of what is needed,” said Dr. Shereen El Feki, Vice-Chair of the Commission. “Condemning people who have left their homes to seek safety strips them of their human rights and in the process increases their vulnerability to HIV and its co-infections.”

Refugees and asylum seekers are often at high risk of HIV and overlapping infections like tuberculosis, but harsh laws restrict health care access. Laws must change to ensure that everyone, no matter where they are from, can receive quality health services. The world is also still off track in funding responses to HIV, tuberculosis and viral hepatitis: in 2015 – the same year that countries adopted the 2030 Agenda for Sustainable Development and its pledge to leave no one behind – donor funding for AIDS fell by 13 percent. Sadly the small uptick in donor funding for HIV in 2017 is at best an anomaly.

Despite these challenges, UNDP together with its UN and civil society partners have helped 89 countries revise their laws to protect people’s health and rights since 2012. Successes include:

· HIV criminalization laws have been repealed in Ghana, Greece, Honduras, Kenya, Malawi, Mongolia, Switzerland, Tajikistan, Venezuela, Zimbabwe and at least two US states.

· Leaders are taking steps to address gender inequities to bolster the rights of women and girls who are disproportionately affected by HIV: Tunisia recently passed a law to end violence against women in public and private life, and Jordan and Lebanon have strengthened legislation on marital rape.

· Access to health care is being prioritized with emphasis on emerging illnesses that target people vulnerable to HIV, including Portugal instituting universal access to hepatitis C treatment in 2015, and France following suit in 2016. A court ruling in India led the Government of India to change its policy on who is eligible for tuberculosis treatment.

· Governments are taking steps to protect the rights of vulnerable groups: Canada, Colombia, Jamaica, Norway and Uruguay have decriminalized possession of small amounts of cannabis and Jamaica erased the criminal records of low-level drug offenders.

The success and sustainability of the global HIV response will be determined in large part by urgent action on laws and policies. The Commission calls on governments and leaders around the world to institute effective laws and policies that protect and promote the rights of people affected by HIV and its co-infections. Since 2012, there have been positive changes in transforming laws and policies, and advancements in science that make it possible to further accelerate progress. The future will be determined by legal environments that drive universal health and human dignity.

Media contact:

In Geneva: Sarah Bel, Communications Specialist, sarah.bel@undp.org, Tel: +41 79 934 1117

In New York: Sangita Khadka, Communications Specialist, UNDP Bureau for Policy and Programme Support, sangita.khadka@undp.org; +1 212 906 5043

The Global Commission on HIV and the Law is an independent body, convened by the United Nations Development Programme (UNDP) on behalf of the Programme Coordinating Board of the Joint United Nations Programme on HIV/AIDS (UNAIDS).

Additional information is available at www.hivlawcommission.org.

Published in UNDP website on July 22, 2018

FOCUS ON EECA: Is Belarus the worst country in the world for HIV criminalisation?

Photo: Representatives of People PLUS at the Gomel Regional Court

Our EECA hub, the Eurasian Women’s Network on AIDS (EWNA), part of the GNP+ family, found that between January 2015 and June 2017, 128 criminal cases had been prosecuted under Article 157, Belarus’ overly broad HIV-specific criminal law.

The highest number of cases in the country were reported in the Gomel region. Between 2012 and 2016, 38 cases were reported. But in the first half of 2017 alone, at least 50 cases had been filed before the courts.

The vast majority of the cases involve people in heterosexual relationships. The law is understood and applied in a way that a person living with HIV not only has a duty to disclose, but also a duty to not place another person at risk of acquiring HIV. While some cases brought to the courts involve allegations of non-disclosure, a large number of cases are between couples of different HIV status, where both parties were aware of HIV in the relationship, and the HIV-negative partner consented to sex.

Charges are laid by the state and are regardless of the partner’s desire to prosecute and regardless of whether protective measures were taken by the person living with HIV, such as using a condom or being on treatment with a low or undetectable viral load.

Cases typically commence when health care providers hear that an HIV-negative person is in a sexual relationship with a person living with HIV, or when a pregnancy is involved. In order to be charged, all that is required is for the person living with HIV should know their HIV status and be registered with the state for HIV services.

As per community reports, people living with HIV are not getting the proper treatment, care and support that they need because of the legal barriers that Article 157 creates in the lives of people living with HIV.

In practice, the law in Belarus keeps people who learn anonymously of their HIV status from accessing treatment, education and counselling because people in Belarus can know about their HIV status and not be registered. Without being formally aware of the presence of HIV, then a person can avoid is not criminally liable. When people face the threat of criminalisation, ignorance of the diagnosis of HIV can be the most effective legal protection.

Crucially, people who are not registered as living with HIV with the state do not receive antiretroviral treatment and therefore endanger themselves and their sexual partners.

Building the case against criminalisation on the ground

People PLUS is a public association representing people living with HIV in Belarus.

It provides counselling to clients/patients – helping them to “correctly” answer questions and complain against forced examination during epidemiological investigations from the Ministry of Health, as well as the Ministry of Internal Affairs. This has been a positive experience with, over the past month, two refusals to initiate criminal cases.

In the Gomel region – where the highest number of cases under Article 157 of the Criminal Code of the Republic of Belarus are being reported – People PLUS have held meetings with the heads of the Epidemiological Department – the “sources” of initiating criminal cases in the region.

An agreement was reached, that without violating guidelines (according to a Ministerial Agreement the Epidemiological Department has to send cases of transmission to the Ministry of Internal Affairs for further investigation), the people under investigation will be immediately provided with People PLUS contacts in order to obtain advice on how to protect themselves during an investigation.

As a result, there was a 40% decrease in the number of criminal prosecutions in the country (19 for the 1st quarter of 2018) and 49% for the Gomel region (12 for the first quarter of 2018), compared to 2017.

People PLUS notes that in the criminal laws of other countries there is the possibility of a person living with HIV to be released from criminal liability if they disclose and receive consent from another person and/or took appropriate measures to greatly reduce the risk of transmission. The application of this rule, as prescribed in the law, will protect the rights and interests of people living with HIV in Belarus. Though ultimately, this is not enough to counteract the damage to the HIV response caused by criminalisation.

A proposal on introducing similar amendments to Article 157 put forward by People PLUS was discussed at a recent meeting of the Parliamentarian Commission on Health, Physical Culture, Family and Youth Policy. The Ministry of Health of the Republic of Belarus sent a letter to the Parliament in support of the initiative. The Commission decided to submit it for discussion in the autumn session of the Parliament.

People PLUS have arranged a meeting with the Chairman of the Gomel Regional Court, S.M. Shevtsov, in order to reduce the number of ongoing cases and to get support to further changes in legislation.

Parliamentary hearings are expected to take place in Autumn 2018.

Download the EECA Regional Criminalisation Report produced by EWNA on behalf of HIV JUSTICE WORLDWIDE here.

Canadian study finds that fear of prosecution deters some men from testing

Fear of Prosecution Over HIV Non-Disclosure Reduces HIV-Negative MSM Testing

According to a recently published study, fear of prosecution over HIV non-disclosure was reported to reduce HIV testing willingness by a minority of HIV-negative men who have sex with men (MSM).

Even though HIV transmission risk is low with effective antiretroviral therapy (ART), non-disclosure criminal prosecutions among gay, bisexual and other MSM are increasing. Because reduced testing may decrease the impact of HIV ‘test and treat’ strategies, researchers aimed to quantify the potential impact of non-disclosure prosecution on HIV testing and transmission among MSM.

Researchers recruited 150 HIV-negative MSM attending an HIV and primary care clinic in Toronto from September 2010–June 2012. Eligible participants included males 16 years or older, HIV-negative patients, and those that had sex with another man in the previous 12 months.

Participants completed an audio computer-assisted self-interview questionnaire that incorporated demographic and sexual behavior characteristics. HIV-negative participants were asked whether concern over non-disclosure prosecution altered the likelihood of HIV testing. Answers were based on a 5-point Likert scale that ranged from much less likely to much more likely to be tested.

Responses were characterized utilizing cross-tabulations and bivariate logistic regressions, while flowcharts modeled how changes in HIV testing behaviour impacted HIV transmission rates controlling for ART use, condom use and HIV status disclosure.

Findings concluded that 129 HIV-negative participants answered the question about concern of prosecution affecting HIV-testing decisions. Seven (5.4%) were much less likely to get tested, 2 (1.6%) were less likely to get tested, 90 (69.8%) reported no change, 11 (8.5%) were more likely to get tested and 14 (10.9%) were much more likely to get tested.

A total of 7% (9/124) were less or much less likely to be testing due to concern over future prosecution. There was no obvious socio/sexual demographic characteristics associated with decreased willingness of HIV testing to due concern.

Researchers estimated that this 7% reduction in testing could cause an 18.5% increase in community HIV transmission and that 73% is driven by unmet needs of HIV-positive undiagnosed MSM individuals.

“This reduction has the potential to significantly increase HIV transmission at the community level which has important public health implications,” study authors said in the study. “There are also great concerns surrounding how negative, crime-related framing of media reports and discourse surrounding HIV criminalization cases could deter HIV testing and increase HIV stigma and discrimination. Hence, HIV criminalization laws could also make disclosure and/or condom use conversations even harder.”

Study limitations include the fact that a clinic-based recruitment was used, which could lead to selection bias with respect to MSM seeking primary care. There was also not sufficient variability in the outcome in order to carry out a multivariable analysis.

Even though the full impact of non-disclosure laws are unclear, decreasing the population on ART through reduction in HIV testing will not reduce transmissions. Future studies are needed to determine the awareness and knowledge of HIV criminalization laws among HIV-positive and HIV-negative individuals. It’s also unclear if never having had a positive HIV test would be a legitimate argument against possible future prosecution.

The study, “Prosecution of non-disclosure of HIV status: Potential impact on HIV testing and transmission among HIV-negative men who have sex with men” was published February 2018 in PLOS One.

Published in MD Magazine on April 1, 2018

Australia: Interview with David Kernohan, CEO of the WA Aids Council, on U=U and law reform in Western Australia

How can we change the laws regarding HIV transmission & criminal offences in WA?

The conviction of one & charging of another HIV+ individual in Western Australia with recklessly causing grievously bodily harm by transmitting HIV to another individual has left many in the HIV+ communities concerned, what does this mean for them, their past and the way in which people perceive them?

Dean Arcuri continues his conversation with CEO of the WA Aids Council.

This episode of The Informer aired on JOY 94.9 on 14th March 2018

https://joy.org.au/theinformer/?powerpress_pinw=3320-podcast

Published on JOY 94.9 on 14th March 2018