Canada: Advocates call for change to HIV disclosure law

Canada’s HIV disclosure law ‘unfair,’ say advocates calling for change

“To equate not disclosing one’s HIV status with the traditional understanding of aggravated sexual assault, we don’t think is fair,” said an advocate from the Canadian HIV/AIDS Legal Network.

The recent arrests of two men accused of failing to disclose their HIV status to their sexual partners have led to renewed calls for changes to legislation that advocates say contributes to the fear and stigma surrounding the disease.

Canadians with HIV are legally required to disclose their status to their partner before engaging in sexual activity. Those who fail to do so can be charged with aggravated sexual assault, whether the virus is transmitted or not.

If convicted, they are automatically added to the sex-offenders registry and face a maximum sentence of life in prison.

But advocates say Canada’s HIV disclosure law has never been shown to deter unsafe sexual practices. Rather, they argue, it has made patients feel more isolated and fearful.

“People living with HIV tend to come from many marginalized groups already,” said Sandra Chu, of the Canadian HIV/AIDS Legal Network. “(The law is) adding a further layer of marginalization and fear.”

Chu said she would like Canada to adopt HIV legislation proposed by the United Nations Programme on HIV/AIDS (UNAIDS), which would prosecute only people who knowingly and intentionally transmit the HIV virus to their partner.

There is a lack of definite evidence on whether criminalization deters HIV patients from exposing others, UNAIDS said in a report released in 2012. It also said that studies from Canada and the U.S. show few people with HIV are aware of the legal requirements pertaining to their illness, and those who are probably already disclose their status to partners.

The Public Health Agency of Canada (PHAC) has said people with HIV/AIDS report increased feelings of fear and stigma as a result of high-profile non-disclosure criminal cases.

“Stigma has a negative impact on prevention efforts by contributing to secrecy and HIV non-disclosure, reinforcing HIV risk and discouraging condom use in some communities,” the agency said in a 2015 report.

A spokesman for the Department of Justice said the Canadian government is “aware of some of the criticisms of non-disclosure laws and appreciates the difficult circumstances individuals face” with regards to HIV disclosure.

In 2012, UNAIDS reported that Canada had convicted more people in connection with HIV non-disclosure, exposure and transmission than any country in the world except the United States.

The Canadian HIV/AIDS Legal Network says there have been at least 180 people charged with HIV non-disclosure-related offences in Canada — with five new cases in 2015.

Earlier this month, Toronto police charged a man with sexual assault and aggravated sexual assault for allegedly having unprotected sex with a woman multiple times over the course of 18 months without telling her he had HIV.

A few days later, Canadian Forces investigators charged a civilian cadet instructor with four counts of aggravated sexual assault for allegedly failing to disclose his HIV status before engaging in a relationship with a member of the military.

In a 1998 ruling, the Supreme Court of Canada said a legal requirement to disclose HIV will, “through deterrence … protect and serve to encourage honesty, frankness and safer sexual practices.”

The court clarified its stance in 2012, ruling that a person with HIV does not have to disclose it to a partner as long as a condom is used and the person has a “low viral load.” A viral load measures the number of copies of the HIV virus per millilitre of blood — the lower a viral load, the lower the chance of transmitting HIV.

However, a group of more than 50 Canadian doctors and researchers released a statement in 2014 saying that “a poor appreciation of the science related to HIV contributes to an overly broad use of the criminal law against” individuals living with the virus.

Using a condom during sexual intercourse is enough to render the risk of transmission negligible, the group said, regardless of viral load.

The fact that people can be charged with mere exposure when there’s “a negligible risk” of transmission is unjust, said Chu.

“To equate not disclosing one’s HIV status with the traditional understanding of aggravated sexual assault, we don’t think is fair.”

Originally published in The Star

Uganda: Uganda Network on Law, Ethics, and HIV (UGANET) leads call to repeal some provisions of the HIV/Aids Prevention and Control law as discriminatory and unconstitutional

Uganda: Activists Go to Court As Call Raises for Equal Rights for People With HIV/Aids

By Mercy Nalugo

HIV/Aids activists delegations comprising policy makers, medical practitioners, researchers, sex workers and other key stakeholders converged in Durban, South Africa, last month for this year’s International Aids Conference.

The conference was geared towards forging ways and sharing knowledge on new developments and what ought to be done to reduce new infections as well as sharing experiences and analysing statistics related to the HIV/Aids trend.

The five-day conference, which kicked off on July 18, was marked under the theme “Access Equity Rights Now”.

Back in the country, in a bid to step up activism and rhyme with this year’s theme, HIV/Aids activists called on the government to implement the right to equity.

Taking to court

More than 100 civil society groups led by the Uganda Network on Law, Ethics, and HIV (UGANET) reiterated calls to have some of the clauses in the controversial HIV/Aids Prevention and Control law repealed saying they are discriminatory and unconstitutional.

This time they did not petition President Museveni, or other implementing agencies having been frustrated several times before, but the Constitutional Court.

They are asking the court to quash some provisions in the HIV/Aids law they say are unconstitutional and promote discrimination and stigmatisation of those with the disease.

One of the contested clauses allows medical practitioners to disclose a client’s HIV status to others.

The law would according to activists contravene the right for HIV positive people to keep their status confidential and would in essence promote stigma while criminalisation of the spread would keep away people from testing.

The same activists in May 2014 strongly opposed certain sections days after Parliament had passed the Bill into law.

They included the Human Rights Watch, Health Global Advocacy Project and the Uganda Network on Law and Ethics and HIV/Aids (UGANET) who said it is “deeply flawed” and promotes “discrimination”.

They later sought the attention of President Museveni asking him not to assent to the law although this did not stop him from doing so. However, the President assented to the law on July 31, 2014.

According to statistics released by the ministry of Health last year, the number of people starting anti-retroviral treatment (ART) in Uganda stood at 713,744.

In just three months, between June and September 2014, a total of 33,744 people enrolled for HIV/Aids treatment, raising the overall number from the previous 680,000 to the above-mentioned number (713,744).

The drugs suppress HIV multiplication in the body.

Activists, however, say that the hardline approach to prevention of HIV/Aids spread has instead discouraged those living with HIV from voluntary testing for fear of victimisation.

Infringment on rights

According to the activists, some clauses were passed without the amendments sought by an all-encompassing network.

Prosper Byonanebye, UGANET head of programmes, says: “The petition among others challenges section 18 (e), on ‘Disclosure of one’s HIV status to undisclosed parties. This is overly-broad, vaguely worded and thus unclear.

It also raises legality questions and infringes on the right to privacy. Same as Section 41 of the HIV prevention and Control Act on attempted transmission which is subject to misuse and can be a ticket to punish innocent Ugandans by self-seekers because it is not specific and it’s difficult to define.

According to Byonanebye, some of the clauses infringe on the right to equality and right to dignity and worsens discrimination hence pushing people living with HIV into hiding instead of the intended policy objective of supporting more of them to disclose as has been the case.

Chapter four of the Constitution emphasises the promotion and protection of several human rights and freedoms by the state including equality and freedom from discrimination (Article 21), right to dignity (Article 24) and right to privacy ( Article 27) among others.

Arguments for the Act

On disclosure of one’s status to other people, Maj (Rtd) Rubaramira Ruranga, a leading HIV/Aids advocate, however tows a different line.

He stresses the need for HIV positive people to open up about their status if solutions are to be found.

“Methodology is what we need to look into to find solutions to the wide spread of HIV/Aids and stigma, which is closely related to HIV/Aids. If we had a method of going house to house and educate the masses about the dangers of HIV and the need to know their status, the infection rate would be reduced. If we test from house to house, we would get rid of stigma,” he says.

“I no longer believe in confidentiality because people have continued to sleep with each other without bothering about the need to test. We should stop hiding something which can be served better Let us fight the conspiracy of the unknown.”

Commenting about the intentional spread of HIV/Aids, Maj Ruranga backs the proposal saying it will go a long way in protecting innocent Ugandans from selfish offenders who knowingly conceal their results away from their partners and infect them with HIV/Aids.

He noted: “Not everybody is bad but there are those spreading HIV intentionally. We do work with a team of young people but we have discovered that some health workers are giving false results at a request.

People know that they are reactive but ask for non-reactive results. I have arrested some and we are still arresting many. What other method is workable other than the law? Let the activists prove beyond reasonable doubt that this law will not work.”

Maj Ruranga adds that the country has lived with the deadly disease for over two decades and it has continued to spread.

“We have become so negligent as a result of pampering certain things. Why should the virus continue spreading? My coming out helped so many. Why do people continue hiding? We need to get out of this and find a solution.”

He emphasises the use of condoms as a preventive measure to guard against HIV/Aids as he opposed calls from the South African conference pushing for PEP to be given to the youth free of charge as a way of guarding against the spread of HIV.

AIDS 2016: Criminalisation is harmful and wrong, and is also damaging prevention strategies

Over 200 activists called for an end to HIV criminalisation throughout the world saying it unjustly harms and blames HIV positive people, damages prevention strategies and undermines national and international sexual health programs.

Earlier during the week some 200 people living with HIV, human rights activists and representatives of key populations gathered for a one-day meeting, held at Durban South Africa, challenging HIV criminalisation under the title “Beyond blame: challenging HIV criminalisation.”

The meeting, which preceded the International Aids Conference in Durban, heard individuals who have faced HIV criminalization recount the far-reaching personal, social and legal impacts of unjust prosecution on their lives and that of their families. Furthermore activists outlined how HIV criminalisation not only uses blame culture, harming not only HIV positive people, but also damaging prevention and undermining sexual health programs world-wide.

The meeting demanded that HIV scientists and clinicians become more involved in efforts to ensure that the application of the criminal law is consistent with best available evidence relating to risk, harm and proof in the context of HIV, as well as calls for members of parliament and the judiciary to end unjust HIV criminalisation.

Speaking with KaleidoScot, Edwin J Bernard, Coordinator at HIV Justice Network, who organised the meeting said: “The meeting included three HIV criminalisation survivors – including one, Kerry Thomas, who called in from behind bars in Idaho – highlighted that HIV criminalisation doesn’t just harm public health, it harms the lives of ordinary people living with HIV, who are often demonised, stigmatised and unjustly targeted by the law.

“Elizabeth Taylor’s grandchildren (and great-grandchild) Laela Wilding, Finn McMurray, Rhys Tivey, and Quinn Tivey were also there, and so incredibly moved, was also inspiring. They have pledged to make HIV criminalisation a key issue for the Elizabeth Taylor AIDS Foundation.

“Then on Tuesday morning, following Justice Edwin Cameron’s Jonathan Mann Memorial Lecture, more than 100 of us took to the stage demanding an end to HIV criminalisation. Justice Cameron welcomed us with open arms, literally! We chanted: WE HAVE A VIRUS! WE ARE NOT CRIMINALS! END CRIMINALISATION NOW!”

HIV medication, or antiretroviral (ARVs), is now highly effective to the point that people who have HIV and use ARVs properly are effectively non-infectious, a recent study found zero infection cases between mixed-HIV status couples. However, many new infection cases arise from people who are unaware of their HIV status – something that HIV criminalisation is likely to worsen, not help.

The general consensus among the scientific and medical communities – and HIV charities – is that ascribing personal blame for infection is neither reliable nor helpful, and that decisions on public health matters should be determined by cost-effectiveness and clinical need rather than moral judgements.

The UNAIDS guidance aims to “end overly broad criminalization of HIV non-disclosure, exposure and transmission on the basis that it “raises serious human rights and public health concerns”. it recommends “concentrating efforts on expanding the use of proven and successful evidence-informed and rights-based public health approaches to HIV prevention, treatment and care” and “limiting any application of criminal law to truly blameworthy cases where it is needed to achieve justice.”

The Oslo Declaration also suggests that “a better alternative [to criminalisation] is to create an environment that enables people to seek testing, support and timely treatment, and to safely disclose their HIV status.”

Activists pointed out that not only is criminalisation harmful and wrong, but it is counterproductive and even endangers prevention strategies. Martha Tholanah, a feminist activist from Zimbabwe, and director of the NGO Community and Enterprise Development against Stigma, told Kaleidoscot that she agrees “with the activists on calling for an end to criminalisation of HIV. It’s scary that the criminalisation cases are increasing. I wonder if the judicial services personnel ever look at the research and consider how the evidence produced can be considered before they tackle these cases. Criminlisation perpetuates stigma and instigates mental health problems.”

While Maurice Tomlinson, a Senior Policy Analyst at Canadian HIV/AIDS Legal Network, commented: “To paraphrase the UNAIDS report released in advance of the ongoing International AIDS Conference, continued criminalisation has stalled the global fight against HIV by driving persons away from effective prevention, treatment, care and support interventions. We can’t fight HIV with fear. We must respond with facts and human rights.”

Activists have also expressed concerns about Scots law, which they believe is doing a disservice to both people who have HIV and wider issues of public health.

Under Scots law, exposing or infecting someone with HIV are considered “culpable and reckless conduct”. These are common-law offences that carry a maximum penalty of life imprisonment, as opposed to five years in England and Wales. If the transmission of HIV is deliberate, it would be legally considered an assault. Scottish law focuses on behaviour (unlike English and Welsh law which focuses on the harm that results from such behaviour): thus exposing others to the risk of HIV transmission (‘HIV exposure’) can be prosecuted. The law however does not specifically mention HIV but has been used against HIV and hepatitis positive people.

Lisa Power, a sexual health campaigner who was the co-founder of Stonewall and who also served as the Secretary-General of the International Lesbian & Gay Association, believes that the “messy” and “damaging” stance of Scots law on the issue needs to be reconsidered, and that Scotland should learn from other jurisdictions.

She told KaleidoScot: ”I think that the South African model is sensible – it only prosecutes for intentional transmission, which includes transmission where there has been a sustained course of deceptive behaviour.

“Various charities have worked with Government lawyers in England and Wales to draft changes to the assault laws back in the 1990s which would have made things here much clearer, simpler and restricted to intentional transmission – but sadly the law change never got enacted so we still have the messy old Victorian laws – and the Scottish ones are even messier.

“But my experience is that trying to prosecute reckless transmission during casual sex has resulted in quite a lot of damage, including miscarriages of justice, because it’s so extremely complicated and people make all sorts of assumptions.

“The trouble with all the UK criminal laws is that we have no way of apportioning responsibility, it’s all victim and offender, which is not how most sex happens. Scotland is worse because you have laws on your books that let the Procurator Fiscal bring cases for exposure – and that’s a ridiculous charge now we have TasP and PreP and we know the relative (low) risks of any one sexual encounter.”

She added: “In my experience, people rush to conclusions, they expect the worst and they also rush to judgement. And as often as not they were wrong.”

A Scottish activist, who asked to remain anonymous, told KaleidoScot: “Criminalising HIV transmission merely perpetuates and even encourages stigmatisation, affects the ability of people to openly discuss their health issues, makes it less likely people will present for testing and ultimately plays into the spread of HIV.”

Robert McKay, National Director Terrence Higgins Trust Scotland, echoed many of these sentiments. He told KaleidoScot: “The current legal situation creates more confusion and potential challenges for people living in Scotland. Whilst it’s important to keep people safe, it’s also important that the law uses intent as a better measure of criminal behaviour as opposed to recklessness.”

When contacted, the charity HIV Scotland, however, only reiterated the current status of Scots legislation and underlined that there has been improvement with “stake holders such as Police Scotland” which resulted in zero prosecutions in the last few years.

A recent study found that prosecutions for HIV non-disclosure, potential or perceived exposure and/or unintentional transmission have now been reported in 61 countries. This total increases to 105 jurisdictions when individual US states and Australian states / territories are counted separately.

Of the 61 countries, 26 applied HIV criminalisation laws, 32 applied general criminal or public health laws, and three (Australia, Denmark and United States) applied both HIV criminalisation and general laws.

There are reports of at least 313 arrests, prosecutions and/or convictions in 28 countries during the report period, covering 1 April 2013 to 30 September 2015.

The highest number of cases during this period were reported in: Russia (at least 115), United States (at least 104), Belarus (at least 20), Canada (at least 17), France (at least 7), United Kingdom (at least 6), Italy (at least 6), Australia (at least 5), Germany (at least 5).

AIDS 2016: Intersectional approaches linking issues across areas of criminalisation have been key themes of AIDS 2016

Susana T. Fried – 22 July 2016

In a moment of global attacks on civil society, an intersectional approach linking issues across HIV, sexuality, adult consensual sex and bodily integrity is critical. Now, more than ever.

Every international AIDS conference seems to have a theme or two that picks up energy as it goes. For me, at the World AIDS Conference 2016 underway in Durban, this was the growing discussion about disastrous impact of criminal law. Of course, this isn’t a new issue – not at an international AIDS conference, nor in advocacy more generally. The 2012 Global Commission on HIV and the Law explored this in depth. However, at this AIDS conference there was a renewed energy behind it. In addition, there were a number of conversations that added a new twist, linking criminalisation of same sex conduct, sex work and HIV criminalisation to criminalisation of abortion.

For someone who stands with one leg in the women’s movement and another in the HIV movement, this was a welcome and long overdue conversation. We know the ways in which abusive laws and practices put sex workers, gay and other men who have sex with men, transgender women (there is still a dearth of data on HIV and transmen or lesbians and other women who have sex with women) and other marginalised groups at increased risk of contracting HIV and create serious and unmanageable barriers to accessing services and justice. We also know the ways in which governments use criminal laws not just to contain and regulate the lives of individuals, but they also use it to circumscribe the work of civil society organisations working on these issues.

Laws that criminalise adult consensual sex, non-heteronormative behavior and gender transgression are used to control (often in the name of “protection”), penalise and, as a result, stigmatise a range of sexual practices and sexual and gender identities that put health and rights at risk. Many of the groups who are on the receiving end of such punitive laws and practices are among those most at risk of contracting HIV. This conversation, despite massive evidence, still doesn’t always inform legislation and public policy. This is, in a sense, “old hat” to social movements across the board.

However, what was new to the conversation at this year’s International AIDS Conference (AIDS2016) in a visible way and in a public conversation was the introduction of criminalisation of abortion to the list of forms of criminalisation that intersect with HIV risk and vulnerability. At one panel, Lucinda O’Hanlon from the UN human rights office drew out some of the parallels between criminalisation of abortion and other forms of criminalisation, stating “Restrictive legal regimes on abortions, including criminalisation, do not reduce abortion rates but rather makes them unsafe. These restrictions are rooted in societal norms that deny women’s agency and capacity to make decisions about their own lives.” In many countries, women who undergo abortions are stigmatised as improper women, much like sex workers who, as Ruth Morgan Thomas noted “Criminalisation of sex work sends the message that sex workers are not seen as fit and worthy to enjoy rights.”

However, the linkages can be more direct. For example, transmen who have sex with other men and become pregnant may find it impossible to find safe and non-judgmental sexual and reproductive health care, let alone abortion services. Sex workers, too, may find their access to abortion services restricted because of the ripple effect of laws criminalising sex work. With abortion, as with other groups whose identities and practices are penalised, other factors of marginalisation matter. In the case of abortion, it is women with fewer resources who are at greatest risk of facing punishment for their choice. The same could be said for those who get penalised for living with HIV. For example, a young woman who has been coerced into having sex and fears that the man she had sex with might be living with HIV, will find it difficult in many countries, to have an abortion. In some countries, if she is under the age of consent for services, she will have to get parental consent just to be able to see a sexual and reproductive health practitioner. A limited number of countries ban abortions under any circumstances, even, in some cases, as a principle of their country’s constitution (Ecuador, for instance). Most countries allow abortion under some circumstances, but access the services requires money, information and the ability to travel. Such resource requirements have a particularly severe impact on young women, poor women, and women in marginalised groups. Failing to learn lessons from HIV, women, adolescents and girls in countries affected by Zika face similar barriers to services and justice.

In a cross-issue conversation, Edwin Bernard from the HIV Justice Network also noted a “shift towards intersectionality in our efforts to end the punitive and abusive laws against various populations,” including women who seek or undergo abortions. In this context, these conversations stand as a clarion call for a new or renewed effort to link forces to challenge the growing reliance on punitive laws and practices, including those about abortion, by governments to control those who step outside of social norms around gender and sexuality.

Originally published in Crosstalk

AIDS 2016: A workshop at the 21st International Aids Conference highlights the need for collaboration across key populations to defeat unjust criminal laws

21 JULY 2016

On 19 July, a workshop was hosted at the 21st International AIDS Conference, being held in Durban, South Africa. Entitled “Common at its core: understanding the linkages for challenging the impact of criminal law across population groups,” the workshop highlighted the common root causes of the misuse of criminal law against people living with HIV, sex workers and lesbian, gay, bisexual, transgender and intersex people, as well as in the context of abortion.

The discussions noted that unjust criminal laws against those populations are due to prejudice, gender inequality and discrimination. The participants stressed that punitive laws against key populations lead to serious human rights violations, exacerbate vulnerabilities to HIV and other health issues and affect efforts to end AIDS.

To address unjust laws, the participants called for building synergies among populations affected by them. This will allow experience-sharing on successful approaches in addressing criminalization and will enable the development of joint strategies. Examples of collaborations between communities to address their common health and human rights challenges were highlighted.

The discussions were concluded with a call for more collaboration in addressing the criminal law and its impact on specific populations, including in the context of HIV. This should build on efforts to expand strategic litigation and the engagement of lawmakers, the police and the judiciary to end injustice and advance health for all.

The event was organized by UNAIDS, the Office of the United Nations High Commissioner for Human Rights, Amnesty International and the Global Health Justice Partnership at Yale University.

QUOTES

“CRIMINALIZATION OF SEX WORK SENDS THE MESSAGE THAT SEX WORKERS ARE NOT SEEN AS FIT AND WORTHY TO ENJOY RIGHTS. SEX WORKERS EXPERIENCE SERIOUS FORMS OF VIOLENCE AND ABUSE, OFTEN COMMITTED BY POLICE AND LAW ENFORCEMENT AGENTS. THESE ABUSIVE LAWS AND PRACTICES VIOLATE HUMAN RIGHTS OBLIGATIONS.”

RUTH MORGAN THOMAS NETWORK OF SEX WORK PROJECTS

“RESTRICTIVE LEGAL REGIMES ON ABORTIONS, INCLUDING CRIMINALIZATION, DO NOT REDUCE ABORTION RATES BUT RATHER MAKE THEM UNSAFE. THESE RESTRICTIONS ARE ROOTED IN SOCIETAL NORMS THAT DENY WOMEN’S AGENCY AND CAPACITY TO MAKE DECISIONS ABOUT THEIR OWN LIVES.”

LUCINDA O’HANLON ADVISER ON WOMEN’S RIGHTS, OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS

“AT ITS CORE, CRIMINALIZATION OF SPECIFIC POPULATIONS, INCLUDING LESBIAN, GAY, BISEXUAL AND TRANSGENDER PEOPLE, IS BASED ON PREJUDICE, FEAR AND STIGMA. CRIMINAL LAWS AGAINST OUR POPULATIONS ARE AMBIGUOUS, UNJUST AND USED MAINLY AS POLITICAL AND SOCIAL TOOLS TO ENFORCE HETERONORMATIVE AND PATRIARCHAL NORMS. WE MUST JOIN HAND AND BUILD SYNERGIES AMONG OUR COMMUNITIES AND SOLIDARITY WITH OTHER SOCIAL JUSTICE MOVEMENTS TO CHALLENGE THESE LAWS.”

KENE ESOM EXECUTIVE DIRECTOR, AFRICAN MEN FOR SEXUAL HEALTH AND RIGHTS

“THE BREAKTHROUGH AT THIS CONFERENCE IS THE SHIFT TOWARDS INTERSECTIONALITY IN OUR EFFORTS TO END THE PUNITIVE AND ABUSIVE LAWS AGAINST VARIOUS POPULATIONS. THIS EMERGING MOVEMENT SHOULD BE SUPPORTED AND STRENGTHENED AS CRITICAL TO ADVANCING EFFECTIVE RESPONSES FOR DIGNITY, HEALTH AND JUSTICE FOR KEY POPULATIONS.”

EDWIN BERNARD GLOBAL COORDINATOR, HIV JUSTICE NETWORK

Originally published on UNAIDS website

AIDS 2016: Discriminatory laws and policies hinder access to HIV prevention, treatment, and care for the populations most at risk of HIV

At the 21st International AIDS Conference (AIDS 2016) in Durban, researchers and community representatives discussed the impact of discriminatory laws and policies in many parts of the world that hinder access to HIV prevention, treatment, and care for the populations most at risk of HIV infection — men who have sex with men, transgender people, sex workers, people who inject drugs, and prisoners.

The latest data from UNAIDS show that these vulnerable populations account for more than one-third of all new HIV infections globally. Compared to the general population: transgender people are 49 times more likely to be living with HIV; men who have sex with men and people who inject drugs are each 24 times more likely to become infected with HIV; sex workers are 10 times more likely to become infected; and prisoners are five times more likely to be living with HIV.

“We will not end AIDS without addressing the needs of the most vulnerable individuals and communities, yet far too many are currently being left behind,” said Chris Beyrer, AIDS 2016 International Chair and President of the International AIDS Society. “Protecting human rights is not just a moral issue, it is a scientific issue. Research presented at this conference will demonstrate that exclusion and discrimination help fuel the spread of HIV.”

Beyrer recently served on a special Johns Hopkins University-Lancet Commission on Drug Policy and Health. He was lead author of the Commission’s final report, published in March 2016 in advance of the UN Special Session on the World Drug Problem. The report concluded in part that drug laws intended to protect have instead contributed to disease transmission, discrimination, lethal violence, and forced displacement, and have undermined people’s right to health.

“Dealing effectively with HIV will require our communities and societies to break down longstanding prejudice, hatred, and ignorance,” said Justice Edwin Cameron of the Constitutional Court of South Africa. “Only when scientific advances are matched by social and cultural progress can this epidemic truly be contained.”

Originally published in Edge Media Network

AIDS 2016: The criminalization of vulnerable populations fuels the HIV epidemic in many countries

THE criminalization of same-sex relationships and prostitution in most parts of the continent has been cited as the major cause of the recurrence of HIV/AIDS in recent years.

After a period of decline, new HIV infections among adults across the globe are on the rise again, it has emerged at the International AIDS Conference in Durban, South Africa.

South Africa is the only African country legalise same-sex unions.

According to Human Rights Watch (HRW), HIV remains stubbornly high among men who have intercourse with men, sex workers, people who use drugs, and transgender women.

Groups like these, which are criminalized in many places, account for more than one-third of new HIV infections worldwide.

HRW Senior Researcher of Health and Human Rights, Megan McLemore, said criminalization restricted access to health care, forcing those most vulnerable to HIV to the margins of society.

“For the sake of populations most vulnerable to HIV, criminal laws need to be reformed, and fast. There is no time to waste,” said McLemore.

Meanwhile, a special issue of the Lancet medical journal released at the Durban conference described prisoners as the most neglected and vulnerable of all populations in the global HIV/AIDS response.

“Prison health care is abysmal in many parts of the world, and HIV prevention and treatment inside some jails is limited or nonexistent,” said McLemore.

Human Rights Watch has documented government failure to provide HIV prevention and treatment programs to prisoners, most recently in Louisiana parish jails.

Michel Sidibe, executive director at UNAIDS, said nearly 2 million people become HIV-positive every year.

Originally published in Caj News

AIDS 2016: HIV criminalisation is on the rise, report presenters at Beyond Blame preconference

HIV criminalisation on the rise, especially in sub-Saharan Africa

Lesley Odendal

Globally, 72 countries have adopted laws that specifically allow for HIV criminalisation, either because the law is specific to HIV, or because it names HIV as one (or more) of the diseases covered by a broader law. This total increases to 101 jurisdictions when the HIV criminalisation laws in 30 of the states that make up the United States are counted individually.

Prosecutions for HIV non-disclosure, potential or perceived exposure and/or unintentional transmission have now been reported in 61 countries. Of the 61 countries, 26 countries applied HIV criminalisation laws and 32 applied general criminal or public-health related laws, according to HIV Justice Worldwide, an international partnership of organizations, made up of the AIDS and Rights Alliance for Southern Africa (ARASA), the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV, the HIV Justice Network, the International Community of Women Living with HIV, the Positive Women’s Network USA and the Sero Project. The findings were presented at the Beyond Blame preconference held at the 21st International AIDS Conference, in Durban, South Africa, this week.

HIV criminalisation refers to the unjust application of criminal law to people living with HIV, based on their HIV status, either through the use of HIV-specific criminal statutes or by applying general criminal laws that allow for the prosecution of unintentional HIV transmission, potential or perceived exposure to HIV – even where HIV is not transmitted – and/or the non-disclosure of known HIV-positive status.

“HIV criminalisation is profoundly bad policy. It is based on fear and outdated understanding of HIV risk and harm and magnifies stigma and discrimination towards people living with HIV,” said Justice Edwin Cameron, judge of the South Africa Constitutional Court.

These laws are not guided by the scientific and medical evidence relating to the transmission mechanisms of HIV, fail to uphold the principles of legal and judicial fairness (such as foreseeability, intent, causality and proof) and directly infringe the human rights of those involved in these cases.

“The evidence that criminalisation as a public health strategy does not work is too plain to contest. It is our responsibility to end it”, said Hon. Patrick Herminie, Speaker of the National Assembly of Seychelles.

To date, thirty countries in sub-Saharan Africa have passed laws criminalising HIV transmission or exposure in some form, including Botswana, Cote d’Ivoire, Nigeria and Uganda, which passed laws in the last year. There has also been a rise in reported prosecutions in sub-Saharan Africa since 2015, in Botswana, South Africa, Uganda and especially Zimbabwe.

An additional workshop at the conference explored the common roots of criminalisation. Panelists identified the key reasons for these misused and often overly-broad interpretations of criminal laws as being due to fear, moral panic, containment of the HIV epidemic and state-sponsored control of bodily autonomy, including sexual conduct and stigma to impose sanctions on those viewed as not being ‘fit and worthy’ of enjoying the protectionist mandate of these laws.

Pervasive gender inequality, power dynamics, and ‘victim-status’ were acknowledged as preventing women from accessing justice to the same extent as men. It was recommended that a feminist framework is used as a strategy to address the criminalisation of HIV as female and transgender sex workers, migrants, indigenous and black women suffer the most from these HIV-specific laws.

Rosemary Namiburu, an ex-nurse from Uganda, who was imprisoned after she was prosecuted for not revealing her HIV status to her partner is an example of this: “My life will not be the same after facing HIV criminalisation. My 30 years of working as a nurse and dedicated to saving lives have been erased. I have spent almost a year in prison and have been branded as a criminal and a killer, even though I have harmed no one.”

Originally published in aidsmap.com

AIDS 2016: Criminal laws need to be reformed for the sake of populations most vulnerable to HIV

Durban – The war on HIV and Aids could be stymied by the unequal application of criminal laws.

This was the consensus of a group of researchers at a session at the International Aids Conference titled “Beyond blame: A feminist dialogue on criminalisation of HIV transmission, exposure and non-disclosure”, which looked at misapplication of the laws of certain countries and their impact on the epidemic.

“The law is a critical tool for creating an enabling environment for effective responses to HIV and to provide access to justice for those affected by HIV. While some have argued in favour of laws criminalising HIV exposure, transmission or non-disclosure as protective of women, they in fact leave them more vulnerable to persecution and increased violence,” said organisers in their introduction.

Marama Pala, a New Zealand activist who was infected 24 years ago, said when the trial against the man who had infected her began, she was painted as the victim. And because she was seen as “criminalising” the spread of HIV, she was ostracised by those living with the virus.

“I was only 22. I didn’t have an education. People would look at me and say: ‘Poor girl’. Everyone called me a victim. But I’m not.”

She said that experience, and many more, had convinced her that this approach did not work and instead became another way to abuse human rights.

“As an indigenous woman (she is Maori) I know how people of colour are always the ones to be disproportionately affected by laws like this one.”

Members of the LGBTI community and prostitutes were also targeted. This point was raised by Jules Kim, a prostitute at Scarlet Alliance, an Australian association, who said that a trans-woman prostitute was now facing charges and was being held in a men’s maximum security prison.

“No white men have been arrested under these laws, unless they are sex workers. Even if a person has been on ARVs for years (meaning that their viral load has been suppressed and they cannot pass on the virus), they are still arrested and face criminal charges.”

She said everyone had a responsibility to protect their sexual health.

Ruth Morgan Thomas, global co-ordinator of the Global Network of Sex Work Projects, said these laws were based on “family values”.

“The custodians of the law – the police – are the ones who are sometimes perpetrators of the violence. If you report a rape, they tell you that that can’t be possible, because you’re a whore.”

Men who had sex with men also bore the brunt of those laws.

Originally published on iol

Uganda: Civil societies challenge HIV criminalisation

KAMPALA – “Whereas the law might have potential to positively contribute to the current HIV/AIDS response efforts in Uganda, there are some contentious clauses that could deter all the benefits realized in the fight against the scourge.”

This is what activists and people living with HIV are saying.

The HIV and AIDS Prevention and Control Act came into effect on July 31, 2014 when President Yoweri Museveni assented to it. But people living with HIV, together with civil society organizations, say it presents a challenge for the human rights of infected people and also undermines several critical issues.

The salient features that are scanned out in the law are: Clauses 41 and 43 of the Act that provide for prosecution on grounds of attempted and intentional transmission of HIV, respectively. Among the provisions of the piece of legislation is criminal penalty for risk and intentional transmission of the virus.

The Act would require mandatory disclosure of one’s HIV status, failure of which would be regarded as “criminal”, and attempting to or, intentionally transmitting the virus.

Failure to use a condom where one knows their HIV status would constitute a criminal offence, making them liable for prosecution.

The Civil Society HIV/AIDS Bill Coalition has been lobbying members of parliament to change the clauses in the Act that are construed to create negative effects in the national response to HIV/AIDS, but lawmakers have been adamant about the issue.

It is against this background that people living with HIV under their umbrella organization the National Forum of People Living with HIV & AIDS Networks in Uganda (NAFOPHANU) together with Uganda Network on Law Ethics and HIV/AIDS (UGANET) and the International Community of Women living with HIV Eastern Africa (ICWEA recently petitioned the constitutional court to review the Act and amend the contentious clauses (41, 43 and 18).

“Honestly, if proven, such behavior cannot go unpunished. The question however is ‘How can it be proven that indeed the HIV of the accuser was got from the accused?’ There is fear that public knowledge of one’s HIV positive status would be used against them due to personal differences,” says Lillian Mworeko (pictured immediately below), regional coordinator for ICWEA.

She argues that this will ultimately discourage people from testing to know their status fearing that if found positive, their status could be used against them in courts of law at any point in time.

It should thus be noted that one who does not know their status cannot be held liable under this law.

“We should avoid creating scenarios where people living with HIV/AIDS are looked at as criminals or potential criminals,” warns Dora Musinguzi, executive director of UGANET.

Eventually, she adds, people will inadvertently live with the virus without accessing treatment and by the time they get to know their status it will be too late.

Stella Kentutsi, the executive director of NAFOPHANU, regrets that these clauses seem to target those already openly living with HIV and as such will affect disclosure, fuel stigma and discrimination thus increasing new infections and affecting access to already available services.

“To this effect, HIV infections and deaths will escalate thus watering down all the achievements so far attained in the fight against HIV. Partner and third party notification in clause 18(2) (e) is likely to breed domestic violence as a health worker is given a right to disclose to a partner without a client’s consent. It also infringes on the right to privacy as per our constitution- Article 27,” Kentutse. –

n their petition, the concerned groups give eight strong points on which they base their ground.

1. The law when enacted will drive people underground

In the face of possible prosecution and forced disclosure, most people will hide away; there would be no reason to take an HIV test in fear of prosecution.

2. It shall be counter-productive

As people shun HIV services and treatment for all possible fears that arise with the provisions of the law, prevention and control cannot be achieved.

3. Taking an HIV test is the beginning point for both control and prevention, however the ACT will deter this effort by empowering medical practitioners to release test results to third parties.

4. It will indiscriminately harass women

Most women get to know their HIV status before their male counterparts as they interface with medical facilities more often. Giving them an extra burden to disclose their status mandatory as a blanket requirement may subject them to violence, abandonment and abuse as they are usually blamed for bringing the virus. In our societies, women cannot easily negotiate sex nor condom use, yet failure to use one while they know their status will warrant such a woman punishment for intentional transmission of the HIV virus.

5. May breakdown families who are already vulnerable

Opening a window for prosecution will encourage family breakdowns where one partner who gets to know their status, blames it on the other and files a case in court. Intentional transmission may never get proved, but the family structure will have been distorted, partners desert each other with the consequent burden born by the poor orphans. HIV status is bad enough for the children but humiliating and sometimes vicious litigation between parents tears their lives apart.

6. Is not situation-specific or realistic

The conditions for this ACT to operate are not realistic, it is extremely difficult to prove who infected the other and therefore it is to no effect. The judiciary in this country is very much strained and it takes long to pass judgment. How many lives would be destroyed if it takes an average five to seven years to get judgment? Worse, the Police force is ineffective and is known to fail to comprehend and prosecute cases of this nature.

7. Selective prosecution

The ACT targets the 20% of Ugandans that have tested and know their status and presumes that some of those knowingly and intentionally transmit HIV. What about the rest of the population who do not know their status yet transmit and cannot be found in the ambit of this ACT? This is unfair, obnoxious and unreasonable and cannot possibly be regarded as an efficacious law.

8. Increased stigma and discrimination

The moment HIV is construed with criminalization and then people go into hiding, those living with HIV will suffer societal victimization since they would now be regarded as threats to public health. As a nation, we can still do better since on this one, we are all in it together.

Originally published in New Vision