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.
Watch all the videos of Beyond Blame @HIV2020 – our “perfectly executed…deftly curated, deeply informative” webshow
“We have been being battling this fight for many years. Since the start of the HIV epidemic we as gay men, as gay women, as queers, as transgender people, as sex workers, as people using drugs, have been persecuted by the criminal law. And I’m here to say, “Enough! Enough!
We have achieved a great deal with our movement, with the HIV Justice Network. We have achieved a great deal in conscientizing law makers, law givers and the public. It is now time for us to join in unison to demand the end of these stigmatising, retrograde, unproductive, hurtful, harmful laws.
It is a long struggle we’ve engaged in. And it’s one that has hurt many of us. Some of us here today, some of us listening in, some of us who have spoken, have felt the most brutal brush of the law. They have been imprisoned, unjustly prosecuted, unjustly convicted, and unjustly sent away.
HIV is not a crime. But there is more to it. Criminalising HIV, criminalising the transmission or exposure of HIV, as many countries on my own beautiful continent Africa do, is not just stupid and retrograde. It impedes the most important message of the HIV epidemic now, which is that this epidemic is manageable. I’ve been on antiretroviral treatment now for very nearly 23 years. My viral load has been undetectable for more than 20.
We can beat this, but we have to approach this issue as public health issue. We have to approach it rationally and sensibly, and without stigma, and without targeting people, and without seeking to hurt and marginalise people.We’ve made calamitous mistakes with the misapplication of the criminal law over the last hundred years, in the so-called ‘war on drugs’. We continue to make a calamitous mistake in Africa and elsewhere by misusing the criminal law against queer people like myself. We make a huge mistake by misusing the criminal law against people with HIV.
Let us rise today and say, “Enough!”
How is the Expert Consensus Statement bringing science to justice?
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. It is now available in English and French (see bottom of page for download links).
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.
Online dating and hookup platforms have fundamentally changed people’s day-to-day practices of sex and love-but exist in tension with older social and medicolegal norms. This is particularly the case for people with HIV, who are frequently stigmatized, surveilled, ostracized and incarcerated because of their status. Efforts to make intimate platforms “work” for HIV frequently focus on user-to-user interactions and disclosure of one’s HIV status but elide both the structural forces at work in regulating sex and the involvement of the state in queer lives. In an effort to foreground these forces and this involvement, we analyze the approaches that intimate platforms have taken in designing for HIV disclosure through a content analysis of 49 current platforms. We argue that the implicit reinforcement of stereotypes about who HIV is or is not a concern for, along with the failure to consider state practices when designing for data disclosure, opens up serious risks for HIV-positive and otherwise marginalized people. While we have no panacea for the tension between disclosure and risk, we point to bottom-up, communal, and queer approaches to design as a way of potentially making that tension easier to safely navigate.
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.
“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.
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.
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
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.
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 — Ontario, British 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.”
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.
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.
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.
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.
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.
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.
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 outand 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.
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.
We 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
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
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.
The 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.
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.