This week, our close partners in the HIV JUSTICE WORLDWIDE coalition, the Canadian-based HIV Legal Network, published a thought-provoking new report, A gender-centred dialogue on alternative justice responses to HIV non-disclosure criminalization in English and French.
Whilst the report focuses on the specifics of the Canadian situation, it provides for provocative and stimulating reading that should inspire all of us working to end HIV criminalisation and other punitive approaches to HIV prevention.
Funded by Women and Gender Equality (WAGE) Canada, the brief synthesises and builds upon the roundtable that was co-hosted by the HIV Legal Network with the Women & HIV/AIDS Initiative (WHAI) and Communities, Alliances & Networks (CAAN) in June 2022.
The objective of the roundtable was to gather cross-sector perspectives about whether an alternative justice approach is warranted or appropriate in situations of HIV non-disclosure.
Given the unique legal situation in Canada, where HIV non-disclosure is prosecuted as sexual assault, and given the interaction between HIV criminalisation, disclosure, and gender – including the risks of gender-based violence and gendered power dynamics – the discussions were grounded in gender-centred considerations.
Since most alternative justice responses focus on repairing the harm caused by an individual and include holding people accountable for their actions, the roundtable and the report raised questions around applying the notions of “harms” or “wrongdoing” to HIV non-disclosure.
Is HIV non-disclosure a harm in and of itself? Or does it depend on the circumstances and characteristics of the involved parties?
Given its harmful impacts, there was a consensus among participants that the criminal law is not the appropriate instrument to respond to HIV non-disclosure.
To respond to the needs of people who experience non-disclosure and account for the realities of women and gender-diverse people including those living with HIV, roundtable participants discussed potential alternative responses, including restorative and transformative justice models.
The roundtable and the report also focused on community-based alternatives to the criminal legal system, notably how to foster collaboration between the HIV sector, the sexual assault and gender-based violence sector, and alternative justice organisations.
Three main themes on alternative community-based interventions emerged from the roundtable:
1. Creating enabling environments for positive and healthy sexuality and sexual relationships.
2. Delivering dynamic, non-shame-based, responses to situations of non-disclosure that depend on the needs of the parties and communities involved.
3. Recognising that an alternative justice approach to HIV non-disclosure must be one that transforms the conditions that lead to increased HIV vulnerability and experiences of violence and criminalisation, all of which must be grounded in an anti-racist and anti-colonial approach.
The report concludes that the current state of HIV criminalisation is untenable and fails to promote “justice” for anyone involved. It ends with a number of recommendations from the HIV Legal Network aimed at the federal government, public health departments, and HIV-impacted communities that primarily focus on creating a supportive, enabling environment for HIV prevention, treatment, care and support.
You can find A gender-centred dialogue on alternative justice responses to HIV non-disclosure criminalization in the English and French versions of the Resource Library of the HIV Justice Academy, as well as on the HIV Legal Network‘s website.
Russia: Most HIV clinicians support HIV criminalisation
A sobering new study from Russia undertaken by the Eurasian Women’s Network on AIDS (EWNA) has found that the majority of HIV clinicians surveyed support HIV criminalisation, with some even believing the current law should be stricter. Those who said they support decriminalisation tended to work at private clinics and were more likely not to question the HIV prevention benefit of antiretroviral therapy.
The study, Attitudes of infectious disease doctors and epidemiologists at AIDS centres towards the criminalization of HIV in the Russian Federation was published in Russian this week by EWNA with financial support from the Robert Carr Fund.
Last year, EWNA undertook an online survey to examine the attitudes of infectious disease specialists and epidemiologists working at state-run AIDS prevention and control centres, as well as other HIV clinicians, towards HIV criminalisation in Russia. They received 186 responses, of which 22 were excluded due the respondents not being HIV clinicians, and 164 responses were analysed.
Of all respondents, 50 (30.5%) worked in AIDS centres, 46 (28%) in hospitals, 34 (27%) in polyclinics, 33 (20.1%) in private clinics and 1 (0.6%) in a clinical diagnostic department. The doctors had been qualified for an average of 13.5 years, with an average 5 years’ experience in the HIV field, and saw, on average, 16 HIV patients a day. The majority worked in cities with a population of more than a million people.
A total of 115 (70.1%) respondents were aware of the content of Russia’s HIV-specific criminal law – ‘Article 122: Infection with HIV’. Infectious disease doctors and epidemiologists were more familiar with the law than doctors in other specialties, and the same was true of AIDS centre staff compared with staff at other medical institutions.
Those who were unaware of the law were provided with a brief overview of its contents before continuing the survey. You can read the full text of the law, and our analysis of its impact, at HJN’s Global HIV Criminalisation Database.
Of all the doctors surveyed, 23 (14%) reported that their patients had been prosecuted under the law, and eleven (6.7%) respondents had given evidence in court.
Most HIV clinicians surveyed supported HIV criminalisation with only a minority agreeing that the law should be completely repealed (23%), reclassified as an administrative offence (15%) or remain as is but with reduced penalties (7%).
Those working in infectious diseases or epidemiology and/or employees of state-run AIDS centres were more likely than doctors of other professions or working in private clinics to argue for a stricter law. Conversely, employees of private fee-paying clinics were more likely to be in favour of reclassifying the law as an administrative offence or abolishing the law altogether.
Notably, respondents in favour of decriminalisation were more likely to say that they were open to having a relationship with a person living with HIV.
The clinicians were also asked about their understanding of the concept of ‘Undetectable equals untransmittable’ (U=U). Only 37% wholeheartedly agreed with the concept, with another 35% agreeing but with certain caveats. Respondents opposing HIV decriminalisation more often than others considered the U=U principle to be wrong, or considered it to be generally correct, but with caveats. Of note, a recently published study found that across Russia only 45% of people with HIV currently receive antiretroviral therapy.
Russia continues to be one of most aggressive enforcers of HIV criminalisation globally with a very high number of unjust arrests, investigations and prosecutions reported each year. The study results suggest that much more work needs to be done to educate HIV clinicians about the harms of HIV criminalisation to both public health and human rights, as well as the unequivocable benefits of HIV treatment on both health and prevention.
The review summarises key developments in the history of HIV criminalisation and highlights newer research – from the last decade but especially from the last five years – on the public health and human rights impact of HIV criminalisation.
It also summarises expert guidance on the subject, especially as it reflects evolving science, also noting the health and human rights concerns about the application of phylogenetic analysis for molecular surveillance data in the context of HIV criminalisation.
It also explores the impact of HIV criminalisation on different populations – women, sex workers, gay and bisexual men and other men who have sex with men, Indigenous persons, immigrants and racial minorities.
Finally, it reviews recent significant efforts to limit the impact of HIV criminalisation most of which would have been impossible without advocacy organisations of people living with HIV and their allies.
The review concludes that HIV criminalisation…
“is inconsistent with the human rights-based response to HIV espoused in UN strategies for decades. It adds to the legal and societal burden faced by those who experience discrimination based on race, class, gender, sexual orientation and immigration status as well as criminalization of other kinds. It is enabled by laws and a criminal legal system that in many cases have not caught up with the science of HIV, deploying the machinery of the criminal law as a response to conduct posing little or even no risk of transmission. It punishes people harshly even in cases where no bodily harm can be discerned and where there has been no intent to cause harm – indeed, even in some cases where people have actively sought to eliminate or reduce the risk of others acquiring the virus. It reinforces HIV-related stigma and can discourage people from seeking health services. It is a vehicle for the misuse of phylogenetic evidence and the public health apparatus of molecular surveillance.
“Any benefits of HIV criminalization, which are hard to discern from existing research, must be weighed against the enormous costs of deepening stigma and fear among people living with HIV and of incarceration, coercion and blackmail, police investigation, criminal proceedings, media hysteria, and saddling people with criminal records, sex offender status, or deportation. The myth that HIV criminalization protects women from predatory men should give way to investment in proven measures to address gender-based poverty, violence and discrimination. Financial support for the work of networks of people living with HIV in low- and middle-income countries to document HIV criminal laws and their impact would be useful.
“At a time of reckoning on race in global health, it behooves governments to review, reform and repeal laws that exacerbate the harm that centuries of White colonialism have visited upon racial minorities and Indigenous people. Significantly reducing HIV among sex workers, people who use drugs, criminalized LGBTQI persons, migrants and prisoners remains central to the Global AIDS Strategy and would be helped by eliminating HIV criminalization. And in a time of emerging infectious diseases, HIV criminalization sets a dangerous precedent. The few but dramatic cases of attempted murder charges that have been brought for alleged HIV transmission in the context of rape in South Africa were the closest precedent for attempted murder charges brought against two men who refused quarantine after having tested positive for SARS-CoV-2 in 2020. The demonization of COVID-19 “carriers” in too many countries is at least partly a shameful legacy of HIV criminalization.”
So many harms, so little benefit: a global review of the history and harms of HIV criminalisation is available for free download from The Lancet HIV until November 22 2022 by using this link.
When law and science part ways: the criminalization of breastfeeding by women living with HIV
The HIV Justice Network (HJN) has been monitoring a disturbing phenomenon — at least 12 women living with HIV have faced criminal prosecution in relation to breastfeeding or comfort nursing.
In addition, women living with HIV have been threatened with punitive public health processes and child protection interventions for breastfeeding their children in multiple countries.
To bring this important issue to the attention of women’s health experts and advocates, HJN worked with our HIV JUSTICE WORLDWIDE partners to write a paper for a Special Collection on Women’s Health and HIV for the peer-reviewed, open access journal Therapeutic Advances in Infectious Diseases.
In “When law and science part ways: the criminalization of breastfeeding by women living with HIV,” published last week, Alison Symington (HJN’s Senior Policy Analyst), Nyasha Chingore-Munazvo (Programmes Lead, AIDS and Rights Alliance of Southern Africa) and Svitlana Moroz (Chair of the Eurasian Women’s Network on AIDS) place the criminalisation of women with HIV for breastfeeding within the context of current medical recommendations and cultural views of breastfeeding. They review the criminal cases against women living with HIV for breastfeeding around the globe, examine the injustice of these prosecutions, and provide recommendations for decriminalisation.
This Special Collection includes papers addressing a wide range of health issues impacting women with HIV. According to lead author Alison Symington, “We felt it was important to submit a paper on breastfeeding and HIV criminalisation because so few people are aware of these horrible cases. Healthcare providers have an important role to play in protecting women from punitive actions and providing them with information and support so that they can make the best decisions for themselves and their children.”
To make the paper even more widely accessible, HJN has provided translations into French, Russian and Spanish.
It is HJN’s aim to collaborate with advocates, researchers, service providers, organisations and community members around the world to raise awareness and prevent further unjust prosecutions against women living with HIV who breastfeed or comfort nurse. We are therefore grateful to both the Elizabeth Taylor AIDS Foundation and the Robert Carr Fund for their financial support for this work.
Preventing the transmission of blood-borne infection by imposing limitations on the donation of blood is an important and legitimate public health objective.
Since the beginning of the HIV epidemic, certain groups – including, but not limited to, gay men and other men who have sex with men – have been subjected to restrictions on their ability to give blood.
Sustained advocacy by gay rights organisations in many high-income countries has focused on the discriminatory nature of these so-called ‘gay blood bans’, highlighting significant advances in blood screening capabilities. This has led to a general softening of restrictions on blood donations for gay men in many of these countries – allowing donations with ‘deferral periods’, or allowing donations based on individual risk assessments.
However, this advocacy has generally not translated into the removal of HIV-specific criminal laws for donating blood, nor has there been a call for a moratorium on singling out people living with HIV for donating blood using non-HIV-specific general criminal laws – even though many of the same public health and human rights arguments apply to both the so-called ‘gay blood bans’ and to HIV criminalisation more generally.
That is why today, the HIV Justice Network has published Bad Blood: Criminalisation of Blood Donations by People Living with HIV. The report was written by Elliot Hatt and edited by Edwin J Bernard, based on research undertaken by Sylvie Beaumont, with additional input provided by Sarai Chisala-Tempelhoff and Paul Kidd (HIV Justice Network’s Supervisory Board); Sean Strub (Sero Project) and Robert James (University of Sussex).
We found that 37 jurisdictions in 22 countries maintain laws that criminalise people with HIV for donating blood. Notably, 15 jurisdictions in the United States (US) have laws which specifically criminalise blood donations by people living with HIV, while four US states – California, Illinois, Iowa, and Virginia – have repealed laws which previously criminalised this conduct.
Although prosecutions are relatively rare, we are aware of at least 20 cases relating to blood donation since 1987. Half of these cases have been reported in Singapore, including two as recently as 2021.
We argue that the criminalisation of blood donations by people with HIV is a disproportionate measure – even if the aim of protecting public health through the prevention of transfusion-transmitted infection is legitimate – and is the result of both HIV-related stigma and homophobia. It is not supported by science.
There is no good reason for any country or jurisdiction to have HIV-specific criminal laws – whether they focus on blood donation or on sexual exposure or transmission. HIV-specific criminal laws are discriminatory and stigmatising, especially since people with other serious blood borne infections – including hepatitis B and C and syphilis – are not singled out with specific laws, nor for prosecution under general criminal laws.
Blood donation criminal laws focused on HIV should be repealed, prosecutions based on general laws should end, and instead science-informed measures – such as individual donor risk assessments and universal blood screening – should be relied on to protect the public against transfusion-transmitted infection.
What we have observed in analysing the research we undertake – when we document all the known cases of HIV criminalisation for our newsletter and then categorise them for further analysis in our Global HIV Criminalisation Database – is this:
“HIV criminalisation is not only a manifestation of state-sponsored HIV stigma but also a proxy for other forms of stigma and discrimination. Exacerbated by heavy-handed policing and vitriolic media coverage enabled by unjust laws that fly in the face of science and human rights, HIV criminalisation thrives at the intersection of social vulnerabilities.”
Although anyone living with HIV could be accused under HIV criminalisation laws or policies, the reality is that HIV criminalisation disproportionately impacts people who are either additionally criminalised, or who are otherwise mistreated by discriminatory legal systems – or both.
These include but are not limited to: sex workers; transgender people; irregular migrants; people who use drugs; gay and bisexual men; people in prison and other closed settings; unsheltered individuals; and people with disabilities, notably with mental health issues.
We also see people discriminated against on the basis of gender, race, religion, ethnicity, and/or country of birth.
That is why we not only cover HIV justice-related issues in our newsletter, but also issues relating to punitive responses to other marginalised populations and identities.
And it’s why we work with a wide range of partners in our work to achieve HIV justice.
Ending HIV criminalisation and truly achieving HIV justice requires much more than reforming or repealing HIV-specific criminal laws – even though that is a pre-requisite and each law reformed or repealed a major step forward.
But, as we conclude in the editorial,
…modernizing or repealing HIV-specific laws alone will be insufficient to address the full complexity of the intersecting stigmas behind both misguided attempts to protect people from HIV infection and intentional criminalization of groups of people (e.g., based on sexual or gender identity, sex work, or drug use). As with other manifestations of discrimination, the ultimate solution lies in equality and empowerment.
New report shows how women living with HIV are leading the response against HIV criminalisation in the EECA region
The report illustrates how HIV criminalisation and gender inequality are intimately and inextricably linked. By highlighting prosecution data from Belarus, Kazakhstan, Russia and Ukraine disaggregated by sex, the report shows how the burden of HIV criminalisation is falling upon women.
The report also includes some heart-breaking personal stories including that of a woman in Russia who was prosecuted for breastfeeding her baby, as well as several women in Russia blackmailed by former partners who threatened to report them for alleged HIV exposure as a way to control, coerce, or abuse them.
The evidence provided in the report clearly demonstrates that HIV criminalisation not only fails to protect women from HIV, but worsens their status in society, making them even more susceptible to violence and structural inequalities due to the way their HIV-positive status is framed by the criminal law.
The report goes on to explore how women living with HIV in the region are vulnerable to a range of economic consequences including loss of property, as well as ostracism and discrimination in their communities, including being separated from their children, because:
Women living with HIV’s reproductive and maternal choices are controlled by, and can be abused by, the state.
Women living with HIV in partnerships with HIV-negative men can be threatened with prosecution, or be prosecuted, even if there has been prior disclosure and consent to the ‘risk’ and even when condoms were used or the woman had an undetectable viral load.
Confidential medical information can be illegally shared with law enforcement agencies.
The report also shows a direct connection between HIV criminalisation and other forms of criminalisation – notably the use and possession of drugs, and of sex work – that exacerbate the burden of discrimination, the violation of rights, and violence experienced by women living with HIV in the region.
Despite the difficult picture painted, the report provides hope, however.
It is the mobilisation of the women’s community and the meaningful participation of HIV-positive women and their allies in advocacy for law reform, rights protections – and in the preparation of alternative reports to UN Committees such as the Committee on the Elimination of Discrimination against Women (CEDAW) – that are making a real difference in the fight against HIV criminalisation in the region.
The report notes that HIV criminalisation laws are “out of step with modern scientific understanding and perpetuate outdated HIV stigmas.” Removing such laws would help to tackle prejudice and refocus HIV as a public health crisis.
Also relevant to our ongoing work on molecular HIV surveillance, the report further recommends that where data is collected, anonymity should always be assured, and “this applies to HIV testing, immigration status, or whatever other circumstances that may place LGBT+ people in danger should their health data be shared with other government authorities.”
Parliamentarians have a responsibility to ensure government departments respect the privacy of citizens and that health data is not being shared with agencies that could present additional barriers to the lives of LGBT+ people, such as immigration authorities or justice departments.
Year in review: Celebrating successes, highlighting the many challenges ahead
This past year has shown us what happens when one pandemic – HIV – is overshadowed by another pandemic, COVID-19. Despite the many lessons learned from our collective advocacy against HIV criminalisation that we and our HIV JUSTICE WORLDWIDE partners highlighted in March, these lessons were mostly ignored by policymakers around the world.
The result was a series of knee-jerk legal, policy and police responses leading to the overzealous policing of people living with HIV and other key and inadequately served populations already subject to existing inequalities in law and policy, which we have been highlighting in our HIV Justice Weekly newsletter since March.
This latest pandemic overshadowed, and in some cases undermined, the work we and others have been doing to ensure a fair, just, rational and evidence-based response towards people living with HIV by the criminal justice system.
2020 also saw Poland passing a new law against COVID-19 that also increased the criminal penalty for HIV exposure, and number of disappointing HIV criminalisation higher court appeals in the US (Ohio), and Canada (Ontario and Alberta) that appeared to ignore science over stigma.
And yet, despite the many difficulties of 2020, the movement to end unjust HIV criminalisation has continued to gain momentum.
There is still so much more to do, however. Despite these successes, as well as the many milestones the HIV JUSTICE WORLDWIDE movement has achieved since its launch in 2016, we will not rest until everyone living with HIV in all their diversity is treated equally, fairly and justly by all actors of the criminal justice system.
HIV criminalisation presentations and posters at AIDS2020
There were a number of presentations, mostly e-posters, at AIDS2020:Virtual that focused on HIV criminalisation. We have compiled them all below given that access was (and remains) limited.
The only oral presentations specifically covering HIV criminalisation were delivered by HIV Justice Network’s Executive Director, Edwin J Bernard, presenting in three pre-recorded video sessions.
Below you will find the presentation ‘Bringing Science to Justice’ for the IAPAC 90-90-90 Targets Update, produced for the session, ‘Creating Enabling Environments for Optimal HIV Responses’. This eleven minute presentation, that also includes a number of video clips, covers the following:
The detrimental implications of HIV criminalisation on human rights and public health
The impact of the ‘Expert consensus statement on the science of HIV in the context of criminal law’
Lessons learned from HIV criminalisation on punitive responses to COVID-19
Conclusion: It is more critical than ever to commit to, and respect, human rights principles; ground public health measures in scientific evidence; and establish partnerships, trust, and co-operation between scientists, law- and policymakers and the most impacted communities.
Update (29 July): During a California HIV/AIDS Policy Research Centers virtual satellite session, Dr. Ayako Miyashita Ochoa of UCLA Luskin School of Public Affairs, Department of Social Welfare, interviewed activist Marco Castro-Bojorquez about the modernisation of California’s HIV-specific criminal law as an example of of evidence-based policymaking.
There were a number of poster presentations that also focused on HIV criminalisation in the following countries/jurisdictions:
PEF 1737 United States
PEF 1738 England & Wales
PEF 1739 Australia
PEF 1740 Niger
PEF 1742 Malawi
PEF 1781 Florida, USA
PEF 1794 Uganda
PEF 1841 Taiwan
The abstracts are below. Click on the title to download the pdf of the poster.
BACKGROUND: In 2017, 36 states had laws penalizing persons with HIV (PWH) for sexual or no-risk behavior (e.g., spitting). Research shows these laws do not impact sexual risk behaviors or diagnosis rates. Citizens likely are unaware of these laws; we do not expect direct behavioral effects. However, laws reflect states’ values and may mirror community attitudes towards PWH. Understanding how structural factors relate to stigma is important for stopping HIV stigma. METHODS: National HIV Behavioral Surveillance used venue-based sampling methods to interview men who have sex with men (MSM) in 23 U.S. cities from June-December 2017. Using Center for HIV Law and Policy reports, we categorized states’ HIV-specific laws as of June 2017. We compared MSM”s perceptions of community attitudes towards PWH between MSM living in states with versus without HIV laws. We obtained adjusted prevalence ratios using log-linked Poisson models assessing the relationship between law and four community stigma attitudes (discrimination, rights, friendship, punishment), which we then compared between black MSM in states with versus without laws. RESULTS: Two-thirds of MSM lived in states with HIV-specific laws. MSM in states with laws were more likely to report black race (38% versus 15%), poverty (23% versus 12%), or incarceration (25% versus 19%). Multivariable models found laws were related to perceived community beliefs that PWH “got what they deserved” (aPR=1.13, 95% CI: 1.03-1.24), but not other attitudes. Compared to black MSM in states without laws, black MSM in states with laws were more likely to believe persons in their community would discriminate against PWH (64% versus 50%), not support PWH’s rights (25% versus 16%), not be friends with PWH (24% versus 13%), and believe HIV was deserved punishment (32% versus 22%). CONCLUSIONS: MSM in states with HIV laws were disproportionately from marginalized groups. Laws were related to perceived community attitudes that HIV was deserved punishment; understanding specific stigma attitudes can inform interventions. Although black MSM reported high community stigma overall, stigma was significantly higher for black MSM in states with HIV laws. States may consider repealing or reforming HIV laws and focusing on effective prevention efforts to End the HIV Epidemic.
BACKGROUND: In England and Wales it is possible to be prosecuted for the sexual transmission of infection under the Offences Against the Person Act 1861 or the Criminal Attempts Act 1981. After the first prosecutions in 2003, National AIDS Trust (NAT) successfully advocated for legal guidance for prosecutors and worked with the Crown Prosecution Guidance (CPS) to develop this. DESCRIPTION: In 2018 NAT requested that the guidance be updated. In January 2019 the CPS shared a draft of their revised guidance with NAT, who then coordinated a joint response from NAT and other key stakeholders. This successfully ensured that the new guidance reflects medical developments such as Undetectable=Untransmittable and clinical guidance. Developments in case law have led the CPS to take the view that HIV/STI status deception may be capable of vitiating consent to sex. NAT is concerned that this could result in people who lie about their HIV status being prosecuted for rape or sexual assault, even with safeguards used and no transmission occurring. NAT prepared a briefing articulating legal, policy and public health arguments against this position, and presented it at a meeting with the CPS. As a result the CPS have added several caveats, but we still believe their position to be unacceptable and discussions are ongoing. LESSONS LEARNED: The successes we have had in improving the guidance demonstrate the importance of long-standing proactive engagement, relationship-building and collaboration. Collaborating with a range of key stakeholders including clinicians and lawyers enabled NAT to leverage wider authority and expertise. However, the issue of HIV status deception has illustrated the implications for HIV of legal developments in related but not directly transferable areas. Confidence in our understanding of the law and persistence in making our arguments heard has been crucial in ensuring ongoing engagement on this issue. CONCLUSIONS: The updated guidance will help to ensure that prosecutions for reckless or intentional transmission are conducted in a way that minimises harm to both individuals and the wider community. Regarding the issue of HIV status deception, possible next steps include securing parliamentary engagement, pro bono legal opinions, and further representations from local government and public health bodies.
BACKGROUND: A significant portion of people convicted of HIV transmission in Australia are not Australian citizens. Due to not holding citizenship, those convicted of serious criminal offences (which includes facing a prison term of 12 months or more), are at risk of having their visas cancelled and being removed from Australia. The HIV/AIDS Legal Centre (HALC) has represented a number of these clients in both their criminal and subsequent immigration proceedings to assist these clients in preventing their removal from Australia. DESCRIPTION: Where a person is not an Australian citizen and commits a criminal offence they are at risk of detention and removal from Australia. In two recent case studies of people with HIV convicted of HIV transmission, following the completion of their custodial sentences steps were then taken to cancel their visas and place them into immigration detention. Both clients had their visas cancelled and had to take steps to appeal the decisions. Part of the reason for the cancellation was the perception of ongoing risk to the Australian community. Neither client had been convicted of intentionally transmitting HIV to their sexual partner. HALC continues to represent one of the clients mentioned and the other has now exhausted all appeal options. LESSONS LEARNED: There are often many and varied reasons for HIV non disclosure and, from HALC”s experiences, following criminal and public health interventions it is unlikely that a person with HIV would continue to place their sexual partners at risk of contracting HIV. Decision makers in migration proceedings appear to be unwilling to accept that a person with HIV would no longer place their sexual partner at risk of HIV transmission as the decision makers note in their decisions that they there remains a risk to the community. CONCLUSIONS: The outcomes of these cases demonstrates the need for ongoing advocacy and law reform in the removal of offences for HIV non-disclosure, exposure and transmission, except where actual intent can be established to a criminal law standard. The cases also demonstrate the ongoing need for continued robust representation of those, often vulnerable migrants, who are facing visa cancellation.
BACKGROUND: To effectively fight against HIV, Niger adopted Law No. 2007-08 of April 30, 2007 related on HIV prevention, care and control. This law included problematic provisions, including the criminalization of exposure, HIV transmission, and the non-disclosure of HIV to the sexual partner. Actually, PLWHIV continue to be victims of the application of the provisions criminalizing the transmission of HIV through several criminal prosecution cases in 2017. DESCRIPTION: In June 2018, 13 civil society organizations created the “National Coalition for the Decriminalization of HIV in Niger”. This one benefited from the technical and financial support of HIV JUSTICE WORLDWIDE. Its advocacy objectives, by 2021, are to : repeal of offenses criminalizing exposure and transmission of HIV ; research and disseminate reliable and convincing data on the impact of HIV criminalization on access to HIV-related services. Since its creation, the Coalition has carried out the following activities: National workshop for consulting civil society stakeholders on the exposure, transmission and non-disclosure of HIV in Niger; The development of the Memorandum of December 20, 2018 entitled ‘exploring ways and means to resolve the problems of legal proceedings against people living with HIV in order to reduce to zero the new infections, deaths and discrimination linked to AIDS; Organization of several advocacy meetings during the ‘zero discrimination’ day (March, 2019) for public decision-makers and partners. LESSONS LEARNED: Judicial police officers and magistrates have to exercise greater caution when considering a criminal prosecution, and in particular, carefully assess the latest scientific data on the risks of transmission and the consequences of the infection; National AIDS Control Program needs a comprehensive assessment of the application of criminal legislation on the transmission, exposure and non-disclosure of HIV status in order to measure its impact on the effectiveness of national response. CONCLUSIONS: The criminalization of HIV transmission undermines public health efforts and does not take into account the reality of PLWHIV and especially women who are not always able to disclose their HIV status without fear of reprisals or violence, or to impose the wearing a condom. The threat of possible criminal prosecution only increases their vulnerability.
BACKGROUND: Building on the work of the Global Commission on HIV and the Law, and in order to promote an enabling environment for achieving the 90-90-90 targets, UNDP has supported regional-and national-level work on removing legal barriers to accessing HIV services in sub-Saharan Africa. Covering over 20 countries, this work consists of regional-level capacity building for duty-bearers and rights-holders from the different countries and in-country activities tailored to local realities. DESCRIPTION: In 2019/20, we evaluated the impacts of this work through a review of project documents and key informant interviews with stakeholders including civil society representatives, government officials, and UNDP staff, and conducted an in-depth case study in Malawi. LESSONS LEARNED: Participation in regional spaces empowered national-level stakeholders in their country level work. A participatory legal environment assessment (LEA), jointly owned by government and civil society, served as the starting point and the resulting document, providing an overview of the strengths and weaknesses of HIV-related national laws and policies, has served as a cornerstone for subsequent activities. For example, national advocacy efforts informed by the LEA, and participation by the Chair of the Parliamentary Committee on HIV in regional activities, were key to shaping a revised HIV law to better align with international human rights law. The new law has led to the reform of the institutional framework for the national HIV response. Judges participated in regional judges’ fora where they could request information on HIV-related science, discuss lived experiences with key populations’ representatives and hear about how legal issues were being addressed across the region. Lawyers from across the region took part in joint training. After one such training, and with technical support from regional partners to create a strong case, a lawyer chose to appeal the conviction of a woman under Malawi’s law criminalizing HIV transmission. The presiding judge had attended regional judges’ fora and, drawing on a firm understanding of HIV transmission dynamics, overturned the original ruling. CONCLUSIONS: A mix of regional and national level activities allows for tailoring of activities to national contexts while also providing space for peer networking and support where ‘difficult’ issues might more easily be discussed.
BACKGROUND: According to the Centers for Disease Control and Prevention (CDC), as of 2016, 108,003 people live with HIV (PLHIV) in Florida, which also has the highest rates of new HIV diagnoses in the country. Numerous complexities worsen Florida’s HIV risk environment, including sex work, human trafficking, injection drug use, and sex tourism. These topics are often bases for HIV-related arrests that journalists cover. HIV criminalization describes statutes that criminalize otherwise legal conduct or that enhance penalties for illegal conduct based on a person’s positive HIV status. METHODS: This study employed a systematic review of Florida news articles on HIV-related arrests published between 2009-2019. Through qualitative content analysis, our study analyzed how race, gender, and journalistic tone coalesce in reports of HIV-related arrests. RESULTS: A 2018 report from the Williams Institute indicated that white Floridian women are primarily arrested for HIV-related crimes. The systematic review found zero news reports on HIV-related arrests of white Floridian women, and only one article identified a female perpetrator whose race was undisclosed. Sixty-four other articles reported solely on the HIV-related arrests of men, predominantly black men. We identified two categories of articles where HIV was either central to the arrest, or the person’s HIV-positive status was reported but exhibited little pertinence to the arrest. CONCLUSIONS: Journalistic and police reporting behaviors risk inadvertently stigmatizing PLHIV at a time when public awareness of HIV depends on perceptions of HIV. This information will be used to shape equitable local nonprofit campaigns for community prevention, and HIV decriminalization efforts, while also combating the perpetuation of HIV misinformation.
BACKGROUND: The purpose of the research: To assess the compliance of the Uganda HIV and AIDS Control and Prevention Act, 2014 (the Act) with international human rights law standards.
Problem: In 2014, the Government of Uganda enacted a law to control and prevent HIV and AIDS. However, human rights advocates contest that the law contains provisions that don”t comply with international human rights law standards. METHODS: Study period: August 2014 – August 2015 Study design: Qualitative design. Data collection: The study used a document analysis method. Method of analysis: The study identified international human rights law standards related to HIV and AIDS and used them as benchmarks for the review, analysis and synthesis of the literature. RESULTS: The study established that: The Act carries provisions that comply with international human rights law standards. These include HIV counselling, testing, and treatment; state responsibility in HIV and AIDS control; the establishment of the HIV and AIDS Trust Fund; HIV-related human biomedical research; and prohibition of discrimination in various settings on grounds of HIV status. The Act also contains provisions that are not compliant with international human rights law standards. These include mandatory HIV testing, disclosure without consent, criminalization of actual and attempted HIV transmission, and criminal penalties for vaguely defined conduct. The Act lacks provisions that would make it more effective in controlling and preventing HIV and AIDS. These include commitments by the state to be accountable for its obligations stated in the Act; definition of what constitutes discrimination in various settings; and addressing challenges such as the causes of discrimination, inadequate professional human resources at health facilities, lack of HIV-friendly services in health facilities, and unregulated informal sector in complying with the law. CONCLUSIONS: The study identified the compliance and non-compliance of the Act to international human rights law standards. It made recommendations to the Government of Uganda, organisations of people living with HIV and AIDS, organisations that advocate for human rights, and national human rights institutions, on the need to eliminate, revise and add some provisions in the Act to create an enabling legal environment that conforms with international human rights law.
BACKGROUND: Taiwan ranks top amongst the most progressive Asian countries, including being the first to pass marriage equality in Asia. Yet, stigma and discrimination of certain sub-populations, specifically people living with HIV (PLHIV) continue to prevail, as reflected in the Article 21 of HIV special law which overly criminalizes HIV non-disclosure, exposure and transmission. METHODS: Using qualitative and quantitative approaches, Persons with HIV/AIDS Rights Advocacy Association (PRAA) of Taiwan makes a case on how the current criminal justice system in Taiwan adapt the narrative of ‘HIV as a weapon’ to prevent PLHIV from asserting their rights. RESULTS:Article 21 states that individuals with knowledge of their HIV-positive status, by concealing the fact, engage in unsafe sex with others or share injection syringes, diluted fluids, and thus infect others, shall be sentenced for 5 to 12 years. Data showed over 30 cases were identified from 2012 to 2019, the majority of prosecutions were associated with sexual activities. However, unsafe sex was often defined exclusively with use of condom, and the court rarely recognized scientific advancements in antiretroviral therapy and suppressed viral load. Cases included: prosecution from ex-partner whom knew defendant’s HIV status before their relationship; state prosecution without plaintiff by turning 14 HIV-positive witnesses into defendants; 13-year incarceration despite medical expert’s testimony on the unlikelihood of HIV transmission. Those who haven’t been prosecuted continued to face both physical and emotional health threats, such as a woman threaten by her admirer to disclose her status if she turns him down. Bias and prejudice, worsen by difficulties in proving self-disclosure or condom use commonly resulted in convictions. CONCLUSIONS:Article 21 and out-of-date judicial interpretation of HIV transmission risks gravely deprive the rights of PLHIV and further perpetuates stigma against PLHIV and affected communities through special criminal law on HIV. There’s a strong case to be made for abolishing Article 21 under the Constitution of Taiwan and the International Bill of Human Rights. Training and support on HIV advancements shall be given to all members of judicial and criminal law system to further inform any application of criminal law in cases related to HIV.
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