How is the Expert Consensus Statement bringing science to justice?

Two years ago this month saw the launch of the Expert consensus statement on the science of HIV in the context of criminal law (Expert Consensus Statement) at a press conference during AIDS2018 in Amsterdam, published in the Journal of the International AIDS Society (JIAS), and translated into French, Russian and Spanish.

Authored by 20 of the world’s leading HIV scientists, and endorsed by more than 70 additional expert scientists, as well as IAPAC, IAS and UNAIDS, the Expert Consensus Statement described current evidence on HIV transmission, treatment effectiveness and forensics so that HIV-related science may be better understood in criminal law contexts.

The Expert Consensus Statement was the end result of a multi-year process developed by a partnership comprising the International AIDS Society (IAS), the International Association of Providers of AIDS Care (IAPAC), the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the HIV JUSTICE WORLDWIDE Steering Committee.

The HIV Justice Network has now published an interim scoping report, written by HJN’s Senior Policy Analyst Sally Cameron, that explores the impact of the Expert Consensus Statement in the two years since its publication.

The report concludes that the Expert Consensus Statement is meeting both its primary aim (to support defence arguments in HIV criminalisation cases) and its secondary aim (supporting lobbying for law and policy reform) in many jurisdictions. But it also found that the process of developing and promoting the content of the Expert Consensus Statement has delivered additional benefits that further support advocacy efforts to end HIV criminalisation.

In summary, the Expert Consensus Statement is being used to:

  • Assist HIV criminalisation defence arguments and strategic litigation, changing courts’ understanding of transmission risks associated with HIV and the effectiveness of modern treatments.
  • Shape advocacy for law and policy reform, including mobilising stakeholders to lobby for reform, delivering law and policy reform, improving legal and judicial practice, facilitating community advocates’ access to government and judicial bodies, and gaining support from public health bodies and customary and religious leaders.
  • Inform scientific and medical thinking, including being cited in many peer reviewed articles and in scientific and medical press, being hosted on the sites of scientific/medical/academic organisations, and being ranked the #1 JIAS article to date.
  • Develop stronger relationships that cross silos and advance capacity, enabling efficient and informal communications between partners to rapidly move projects forward, with Expert Consensus Statement authors supporting community organisations by assisting in defence cases, answering ad hoc questions and co-authoring abstracts, presentations and articles.
  • Disseminate accurate, positive messages about people living HIV and the issue of HIV criminalisation, including facilitating keynote addresses and presentations at notable conferences and meetings, and generating global mainstream, community and social media. Ultimately, interest in the Expert Consensus Statement has elevated the global conversation about HIV criminalisation, with co-ordinated messaging translating into a powerful positive narrative in many sites.

 

Canadian study provides damning evidence of the “dramatic overrepresentation” of Black men in HIV criminalisation news reporting

A new study published this month by a group of leading Canadian social science academics provides damning evidence of the extraordinary over-representation of Black and Black immigrant male defendants in news reporting of Canadian HIV criminalisation cases.

Eric Mykhalovskiy and Colin Hastings from York University, Toronto; Chris Sanders from Lakehead University, Thunder Bay; and Laura Bisaillon from the University of Toronto Scarborough, analysed 1680 English-language articles published between 1989 and 2015.

They found that Black men comprised 21% of those charged with HIV criminalisation offences – which under Canadian law relates to non-disclosure of known HIV-positive status, usually charged as aggravated sexual assault –  but were the focus of 62% of newspaper articles covering the issue. The pattern was amplified for Black men who were immigrants or refugees who made up 15% of those charged but were the focus of 61% of newspaper stories.

The researchers note:

“The result is a type of popular racial profiling in which HIV non-disclosure is treated as a crime of Black men who are represented as dangerous, hypersexual foreigners who threaten the health and safety of the public and, more broadly, the imagined Canadian nation.”

 

The study is important for more than its quantitative findings, as it also considers the role of the media in the construction of public perception.

The researchers argue that media reporting involves a process of “recontextualization,” which occurs when speech is selected and moved from one place (e.g. a court) and fitted into another for a different purpose (e.g. a media story). In other words, they say, information is “selectively reported and repurposed into news stories”.

Their analysis found that in media reporting of HIV criminalisation cases, ‘whiteness’ became a neutral position. This usually meant that when a person was white their ethnicity or immigration status was rarely, if ever, mentioned.

For Black men living with HIV, however, the researchers found that the reporting was racialised, depicting such men as morally blameworthy and discussing them in terms of their “immigration status, hypersexuality, and other forms of racialised difference”.

Consequently, they argue, Black men living with HIV are depicted in these news reports not only as a threat to individual complainants, but also as a threat to Canadian society.

The researchers also discussed how news media reporting routinely involves forms of writing that silence people facing HIV-related criminal charges. Their experiences are rarely heard which, they summise, is likely due to reporters’ decisions about who to quote, as well as defendants being discouraged by their laywers to publicly comment on their cases.

Consequently, people living with HIV involved in HIV criminalisation cases are only spoken about, and their lives are only known about within the context of crime stories.

The authors hope their analysis will help advocates “to intervene in popular news coverage of HIV non-disclosure”, urging the use of counter-narratives emphasising how HIV non-disclosure, exposure or transmission should be seen as a public health issue and not a criminal justice issue.

They conclude:

The profound silencing of Black immigrant men in newspaper coverage of HIV non-disclosure suggests the need to support strategies that create an affirmative presence in mainstream media for Black men living with HIV.


Source

Eric Mykhalovskiy, Chris Sanders, Colin Hastings & Laura Bisaillon (2020) Explicitly racialised and extraordinarily over-represented: Black immigrant men in 25 years of news reports on HIV non-disclosure criminal cases in Canada, Culture, Health & Sexuality, DOI: 10.1080/13691058.2020.1733095

Further resources

 

Canada: Justice Committee report recommends wide-ranging reforms to HIV criminalisation, including removing HIV non-disclosure from sexual assault law

Yesterday, the House of Commons Standing Committee of Justice and Human Rights released a ground-breaking report “The Criminalization of HIV Non-Disclosure in Canada” recommending that the Government of Canada works with each of the Canadian provinces and territories to end the use of sexual assault law to prosecute allegations of HIV non-disclosure.

According to a press release issued by our HIV JUSTICE WORLDWIDE partners, the Canadian HIV/AIDS Legal Network:

People living with HIV currently face imprisonment for aggravated sexual assault and a lifetime designation as a sex offender for not disclosing their HIV status to sexual partners, even in cases where there is little or even zero risk of transmission. This means a person engaging in consensual sex that causes no harm, and poses little or no risk of harm, can be prosecuted and convicted like a violent rapist. We welcome the Committee’s recognition of this unjust reality and their call to end the use of sexual assault laws. We and our allies have spent many years advocating for this critical change.

The report also recommends that Canada limits HIV criminalisation to actual transmission only. The Legal Network notes:

But we must go further: criminal prosecution should be limited to cases of intentional transmission as recommended by the UN’s expert health and human rights bodies. Parliament should heed such guidance. Criminal charges and punishments are the most serious of society’s tools; their use should be limited and a measure of last resort.

However, one of the recommendations that the Legal Network takes issue with is the recommendation to broaden any new law to include other infectious diseases.

Infectious diseases are a public health issue and should be treated as such. We strongly disagree with the recommendation to extend the criminal law to other infectious diseases. We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.

Currently, there is a patchwork of inconsistent approaches across each province and territory. Only three provinces — OntarioBritish Columbia and Alberta — have a formal policy in place or have directed Crown prosecutors to limit prosecutions of HIV non-disclosure, and they all fall short of putting an end to unjust prosecutions.

A December 2018 federal directive to limit HIV criminalisation, which solely applies to Canada’s territories, is already having some impact — in January 2019 it led to Crown prosecutors in the Northwest Territories dropping a wrongful sexual assault charge against a man living with HIV in Yellowstone. “We followed the directive and chose not to prosecute,” said Crown attorney Alex Godfrey.

Other positive recommendations in the report include:

  • An immediate review of the cases of all individuals who have been convicted for not disclosing their HIV status and who would not have been prosecuted under the new standards set out in the recommendations of the Committee.
  • These standards must reflect “the most recent medical science regarding HIV and its modes of transmission and the criminal law should only apply when there is actual transmission having regard to the realistic possibility of transmission. At this point of time, HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission.”
  • And, until a new law is drafted and enacted (which is only likely to happen if the current Liberal Government is re-elected in October), there should be implementation of a common prosecutorial directive across Canada to end criminal prosecutions of HIV non-disclosure, except in cases where there is actual transmission.

The report also recommends that any new legislation should be drafted in consultation with “all relevant stakeholders including the HIV/AIDS community”, which the Legal Network also welcomed.

The report is the result of a study of the ‘Criminalization of Non-Disclosure of HIV Status that ran between April and June 2019. Many Canadian experts testified as key witnesses to help MPs gain insight into why Canada’s current approach is wrong. HIV JUSTICE WORLDWIDE also submitted a brief to the committee, providing international context to Canada’s extremely severe approach to HIV non-disclosure.

The Legal Network concludes:

The next step is actual law reform. The report makes clear that change to the criminal law is needed. Any new legal regime must avoid the harms and stigma that have tainted the law these past 25 years.

New report analyses the successes and challenges of the growing global movement against HIV criminalisation

A new report published today (May 29th 2019) by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE provides clear evidence that the growing, global movement against HIV criminalisation has resulted in more advocacy successes than ever before. However, the number of unjust HIV criminalisation cases and HIV-related criminal laws across the world continue to increase, requiring more attention, co-ordinated advocacy, and funding.

Advancing HIV Justice 3: Growing the global movement against HIV criminalisation provides a progress report of achievements and challenges in global advocacy against HIV criminalisation from 1st October 2015 to 31st December 2018.

Although the full report is currently only available in English, a four-page executive summary is available now in English, French, Russian and Spanish.  The full report will be translated into these languages and made available later this summer.

The problem

HIV criminalisation describes the unjust application of criminal and similar laws to people living with HIV based on HIV-positive status, either via HIV-specific criminal statutes or general criminal or similar laws. It is a pervasive illustration of how state-sponsored stigma and discrimination works against a marginalised group of people with immutable characteristics. As well as being a human rights issue of global concern, HIV criminalisation is a barrier to universal access to HIV prevention, testing, treatment and care.

Across the globe, laws used for HIV criminalisation are often written or applied based on myths and misconceptions about HIV and its modes of transmission, with a significant proportion of prosecutions for acts that constitute no or very little risk of HIV transmission, including: vaginal and anal sex when condoms had been used or the person with HIV had a low viral load; oral sex; and single acts of breastfeeding, biting, scratching or spitting.

Our global audit of HIV-related laws found that a total of 75 countries (103 jurisdictions) have laws that are HIV-specific or specify HIV as a disease covered by the law. As of 31st December 2018, 72 countries had reported cases: 29 countries had ever applied HIV-specific laws, 37 countries had ever applied general criminal or similar laws, and six countries had ever applied both types of laws.

Cases infographic During our audit period, there were at least 913 arrests, prosecutions, appeals and/or acquittals in 49 countries, 14 of which appear to have applied the criminal law for the first time. The highest number of cases were in Russia, Belarus and the United States. When cases were calculated according to the estimated number of diagnosed people living with HIV, the top three HIV criminalisation hotspots were Belarus, Czech Republic and New Zealand.

Screenshot 2019-05-29 at 10.27.51The pushback

Promising and exciting developments in case law, law reform and policy took place in many jurisdictions: two HIV criminalisation laws were repealed; two HIV criminalisation laws were found to be unconstitutional; seven laws were modernised; and at least four proposed laws were withdrawn. In addition, six countries saw precedent-setting cases limiting the overly broad application of the law through the use of up-to-date science.

Screenshot 2019-05-29 at 10.29.06The solution

Progress against HIV criminalisation is the result of sustained advocacy using a wide range of strategies. These include:

  • Building the evidence base Research-based evidence has proven vital to advocacy against HIV criminalisation. In particular, social science research has been used to challenge damaging myths and to identify who is being prosecuted, in order to help build local and regional advocacy movements.
  • Ensuring the voices of survivors are heard HIV criminalisation advocacy means ensuring that HIV criminalisation survivors are welcomed and supported as advocates and decision-makers at all stages of the movement to end HIV criminalisation.
  • Training to build capacity Successful strategies have focused on grassroots activists, recognising that training events must be community owned and provide opportunities for diverse community members to come together, hold discussions, set agendas, and build more inclusive coalitions and communities of action.
  • Using PLHIV-led research to build community engagement capacity Research led by people living with HIV (PLHIV) provides a mechanism to engage communities to develop in-depth understanding of issues and build relationships, mobilise and organise.

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  • Using science for justice HIV criminalisation is often based on outdated and/or inaccurate information exaggerating potential harms of HIV infection. In addition, HIV-related prosecutions frequently involve cases where no harm was intended; where HIV transmission did not occur, was not possible or was extremely unlikely; and where transmission was neither alleged nor proven beyond a reasonable doubt.
  • Engaging decision-makers through formal processes Activists have worked to bring about legal and policy changes not only by lobbying local decision-makers, but also by engaging in other formal processes including using international mechanisms to bring HIV criminalisation issues to the attention of state or national decision-makers.
  • Acting locally and growing capacity through networks Many community organisations working to limit HIV criminalisation are actively supporting grassroots community advocates’ participation at the decision-making table.
  • Getting the word out and engaging with media Activists have employed diverse strategies to extend the reach of advocacy against HIV criminalisation including pushing the issue onto conference agendas, presenting messaging through video, working through digital media forums, using public exhibitions to push campaign messaging, and holding public demonstrations. Sensationalist headlines and misreporting of HIV-related prosecutions remain a major issue, perpetuating HIV stigma while misrepresenting the facts. Activists are endeavouring to interrupt this pattern of salacious reporting, working to improve media by pushing alternative, factual narratives and asking journalists to accurately report HIV-related cases with care.

Acknowlegements

Advancing HIV Justice 3 was written on behalf of HIV JUSTICE WORLDWIDE by the HIV Justice Network’s Senior Policy Analyst, Sally Cameron, with the exception of the Global overview, which was written by HIV Justice Network’s Global Co-ordinator, Edwin J Bernard, who also edited the report.

We would especially like to acknowledge the courage and commitment of the growing number of advocates around the world who are challenging laws, policies and practices that inappropriately regulate and punish people living with HIV. Without them, this report would not have been possible.

rcnf 346x228We gratefully acknowledge the financial contribution of the Robert Carr Fund to this report.

A note about the limitations of the data

The data and case analyses in this report cover a 39-month period, 1 October 2015 to 31 December 2018. This begins where the second Advancing HIV Justice report – which covered a 30-month period, 1 April 2013 to 30 September 2015 – left off. Our data should be seen as an illustration of what may be a more widespread, but generally undocumented, use of the criminal law against people with HIV.

Similarly, despite the growing movement of advocates and organisations working on HIV criminalisation, it is not possible to document every piece of advocacy, some of which takes place behind the scenes and is therefore not publicly communicated.

Despite our growing global reach we may still not be connected with everyone who is working to end HIV criminalisation, and if we have missed you or your work, we apologise and hope that you will join the movement (visit: www.hivjusticeworldwide.org/en/join-the-movement) so we can be in touch and you can share information about your successes and challenges.

Consequently, this report can only represent the tip of the iceberg: each piece of information a brief synopsis of the countless hours and many processes that individuals, organisations, networks, and agencies have dedicated to advocacy for HIV justice.


Suggested citation: Sally Cameron and Edwin J Bernard. Advancing HIV Justice 3: Growing the global movement against HIV criminalisation. HIV Justice Network, Amsterdam, May 2019.

US: New report by the Williams Institute shows clear disparities in enforcement of HIV criminalization laws in Florida

Study shows impact of HIV criminalization laws 

Los Angeles – Florida laws that criminalize people living with HIV directly affected 614 people from 1986 to 2017, according to a new report by the Williams Institute at the UCLA School of Law. Researchers found that women were disproportionately affected by HIV criminalization. White women were disproportionately arrested for HIV offenses in Florida, and black women were most likely to be convicted for HIV offenses related to sex work. HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or increase the penalties for illegal conduct based upon a person’s HIV-positive status. More than two-thirds of US states and territories have enacted HIV criminal laws.

“Our study shows that certain communities, whether defined by gender, race/ethnicity, or sex-worker status, are bearing more of the weight of these laws,” said lead author Amira Hasenbush. “What’s more, these HIV criminal laws, which were originally intended to control the spread of HIV by prosecuting individuals who expose others, don’t require proof of transmission or even exposure in most cases. So the laws are not doing what they set out to do.”

Key findings: Individuals were arrested under HIV-related statutes in 47 out of the 67 counties in Florida. The highest prevalence of HIV in the state is found in Miami-Dade (24%) and Broward Counties (18%), but those counties represent only 4% and 3%, respectively, of the HIV-related arrests. On the other hand, Duval County is home to only 6% of the people living with HIV in Florida but 23% of all HIV-related arrests in the state. Over half (56%) of all individuals arrested under an HIV-related offense were women. More than four in ten people arrested under an HIV-related offense were black (43%) and white women were more likely to be arrested for an HIV-criminal offense than other groups. Black men were more likely to be convicted of an HIV-related offense than white men and white women. Convictions for HIV arrests were twice as likely when there was a concurrent sex work arrest than when the HIV offense occurred outside of the context of sex work. Read the report Williamsinstitute.law.ucla.edu/wp-content/uploads/HIV-Criminalization-Florida-Oct-2018.pdf

Published in Baltimore Outloud on October 13, 2018

Beyond Blame 2018 Meeting Report and Evaluation Now Available

Beyond Blame 2018: Challenging HIV Criminalisation was a one-day meeting for activists, advocates, judges, lawyers, scientists, healthcare professionals and researchers working to end HIV criminalisation. Held at the historic De Balie in Amsterdam, immediately preceding the 22nd International AIDS Conference (AIDS 2018), the meeting was convened by HIV JUSTICE WORLDWIDE and supported by a grant from the Robert Carr Fund for Civil Society Networks.

The Meeting Report and Evaluation, written by the meeting’s lead rapporteur, Sally Cameron, Senior Policy Analyst for the HIV Justice Network, is now available for download here.

Screen Shot 2018-10-03 at 10.56.59The meeting discussed progress on the global effort to combat the unjust use of the criminal law against people living with HIV, including practical opportunities for advocates working in different jurisdictions to share knowledge, collaborate, and energise the global fight against HIV criminalisation. The programme included keynote presentations, interactive panels, and more intimate workshops focusing on critical issues in the fight against HIV criminalisation around the world.

The more than 150 attendees at the meeting came from 30 countries covering most regions of the world including Africa, Asia and the Pacific, Eastern Europe and Central Asia, Latin and North America and Western Europe. Participation was extended to a global audience through livestreaming of the meeting on the HIV JUSTICE WORLDWIDE YouTube Channel, with interaction facilitated through the use of Twitter (using the hashtag #BeyondBlame2018) to ask questions of panellists and other speakers. See our Twitter Moments story here.

Following the meeting, participants were surveyed to gauge the event’s success. All participants rated Beyond Blame 2018 as good (6%), very good (37%), or excellent (57%), with 100% of participants saying that Beyond Blame 2018 had provided useful information and evidence they could use to advocate against HIV criminalisation. 

A video recording of the entire meeting is available on HIV JUSTICE WORLDWIDE’s YouTube Chanel.  

Key points

  • The experience of HIV criminalisation was a poor fit for individual’s actions and the consequences of those actions, particularly where actions included little or no possibility of transmission or where courts did not address scientific evidence
  • The consequences of prosecution for alleged HIV non-disclosure prior to sex are enormous and may include being ostracised, dealing with trauma and ongoing mental health issues, loss of social standing, financial instability, multiple barriers to participation in society, and sex offender registration
  • Survivors of the experience shared a sense of solidarity with others who had been through the system, and were determined to use their voices to create change so that others do not have to go through similar experiences
  • Becoming an advocate against HIV criminalisation is empowering and helps to make sense of individuals’ experiences
  • The movement against HIV criminalisation has grown significantly over the last decade but as the movement has grown, so has understanding of the breadth of the issue, with new cases and laws frequently uncovered in different parts of the world.
  • As well as stigma, there are multiple structural barriers in place enabling HIV criminalisation, including lags in getting modern science into courtrooms and incentives for police to bring cases for prosecution.
  • Community mobilisation is vital to successful advocacy. That work requires funding, education, and dialogue among those most affected to develop local agendas for change.
  • Criminalisation is complex and more work is required to build legal literacy of local communities.
  • Regional and global organisations play a vital role supporting local organisations to network and increase understanding and capacity for advocacy.
  • There have already been many advocacy successes, frequently the result of interagency collaboration and effective community mobilisation.
  • It is critical to frame advocacy against HIV criminalisation around justice, effective public health strategy and science rather than relying on science alone, as this more comprehensive framing is both more strategic and will help prevent injustices that may result from a reliance on science alone.
  • There have been lengthy delays between scientific and medical understanding of HIV being substantiated in large scale, authoritative trials, and that knowledge being accepted by courts.
  • Improving courts’ understanding that effective treatment radically reduces HIV transmission risk (galvanised in the grassroots ‘U=U’ movement) has the potential to dramatically decrease the number of prosecutions and convictions associated with HIV criminalisation and could lead to a modernisation of HIV-related laws.
  • Great care must be exercised when advocating a ‘U=U’ position at policy/law reform level, as doing so has the potential to deflect attention from issues of justice, particularly the need to repeal HIV-specific laws, stop the overly broad application of laws, and ensure that people who are not on treatment, cannot access viral load testing and/or who have a detectable viral load are not left behind.
  • Courts’ poor understanding of the effectiveness of modern antiretroviral therapies contributes to laws being inappropriately applied and people being convicted and sentenced to lengthy jail terms because of an exaggerated perception of ‘the harms’ caused by HIV.
  • HIV-related stigma remains a major impediment to the application of modern science into the courtroom, and a major issue undermining justice for people living with HIV throughout all legal systems.
  • HIV prevention, including individuals living with HIV accessing and remaining on treatment, is as much the responsibility of governments as individuals, and governments should ensure accessible, affordable and supportive health systems to enable everyone to access HIV prevention and treatment.
  • New education campaigns are required, bringing modern scientific understanding into community health education.
  • Continuing to work in silos is slowing our response to the HIV epidemic.
  • HIV criminalisation plays out in social contexts, with patriarchal social structures and gender discrimination intersecting with race, class, sexuality and other factors to exacerbate existing social inequalities.
  • Women’s efforts to seek protections from the criminal justice system are not always feminist; they often further the carceral state and promote criminalisation.
  • Interventions by some purporting to speak on behalf of women’s safety or HIV prevention efforts have delivered limited successes because social power, the structuring of laws and the ways laws are administered remain rooted in patriarchal power and structural violence.
  • Feminist approaches must recognise that women’s experiences differ according to a range of factors including race, class, types of work, immigration status, the experience of colonisation, and others.
  • For many women, HIV disclosure is not a safe option.
  • More work is needed to increase legal literacy and support for local women to develop and lead HIV criminalisation advocacy based on their local context.
  • When women affected by HIV have had the opportunity to consider the way that ‘protective’ HIV laws are likely to be applied, they have often concluded that those laws will be used against them and have taken action to advocate against the use of those laws.

At the end of the meeting, participants were asked to make some closing observations. These included:

  • Recognising that the event had allowed a variety of voices to be heard. In particular, autobiographical voices were the most authentic and most powerful: people speaking about their own experiences. This model which deferred to those communicating personal experiences, should be use when speaking to those in power.
  • Appreciating that there was enormous value in hearing concrete examples of how people are working to address HIV criminalisation, particularly when working intersectionally. It is important to capture these practical examples and make them available (noting practical examples will form the focus of the pending Advancing HIV Justice 3 report).
  • Understanding that U=U is based on a degree of privilege that is not shared by all people living with HIV. It is vital that accurate science informs HIV criminalisation as a means to reduce the number of people being prosecuted, however, people who are not on treatment are likely to become the new ‘scapegoats’. It is important that we take all opportunities to build bridges between U=U and anti-HIV criminalisation advocates, to create strong pathways to work together and support shared work.
  • Noting the importance of calling out racism and colonialism and their effects.
  • Observing that more effort is required to better understand and improve the role of police, health care providers and peer educators to limit HIV criminalisation.
  • Exploring innovative ways to advocate against HIV criminalisation, including community education work through the use of art, theatre, dance and other mechanisms.
  • Concluding that we must challenge ourselves going forward. That we must make the circle bigger. That next time we meet, we should challenge ourselves to bring someone who doesn’t agree with us. That we each find five people who aren’t on our side or don’t believe HIV criminalisation is a problem and we find ways and means (including funding) to bring them to the next Beyond Blame.

Livestream: Beyond Blame – Challenging HIV Criminalisation: Building Bridges Across Movements: Linking HIV Criminalisation With the Criminalisation of Abortion, Drug Use, Gender Expression, Sexuality and Sex Work (HJN, 2018)

Welcome by Luisa Cabal (UNAIDS) Moderator: Susana Fried (CREA and Global Health Justice Partnership) With: Ricki Kgositau (AIDS Accountability International), Oriana López Uribe (BALANCE / RESURJ), Nthabiseng Mokoena (ARASA), Niluka Perera (Youth Voices Count), Jaime Todd-Gher (Amnesty International), Kay Thi Win (Asia Pacific Network of Sex Workers)

Livestream: Beyond Blame – Challenging HIV Criminalisation: Plenary 2 (HJN, 2018)

Welcome to BEYOND BLAME – Challenging HIV Criminalisation, live from De Balie in Amsterdam, 23 July 2018.

11:2012:10 What About Human Rights? The Benefits and Pitfalls of Using Science in Our Advocacy to End HIV Criminalisation Facilitator: Laurel Sprague (UNAIDS) With: Chris Beyrer (John Hopkins Bloomberg School of Public Health), Edwin Cameron (Constitutional Court of South Africa), Richard Elliott (Canadian HIV/AIDS Legal Network), Lynette Mabote (ARASA), Paula Munderi (IAPAC)

12:1013:00 Women and HIV Criminalisation: Feminist Perspectives Facilitator: Naina Khanna (Positive Women’s Network – USA) With: Sarai Chisala-Tempelhoff (Women’s Lawyers Association, Malawi), Michaela Clayton (ARASA), Kristin Dunn (AIDS Saskatoon), Deon Haywood (Women With A Vision)

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

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