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.

11:20 – 12:10 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)

12:10 – 13:00 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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Paul Kidd ASHM 2018 Lecture: HIV, Consent and the Criminal Law (Australia, 2018)

Synopsis
What is the role of the criminal law in relation to HIV medicine? Medical practitioners and other health care workers provide testing, diagnosis, counsel and care – but the use of the criminal law to prosecute people with HIV means health professionals may also find themselves entangled in a criminal investigation. What should we tell patients about their rights and responsibilities when it comes to HIV transmission or exposure? Taking medical and legal notions of consent as its starting point, this presentation will explore the complex and problematic impacts of HIV criminalisation on medical practice and the lives of people living with HIV, discuss the unrealised potential for the criminal law to be a healing process, and provide some guidance for practitioners who need to balance their roles as health providers with the legalities of HIV transmission and exposure.

Biography
Paul Kidd is an activist, writer and commentator with a particular interest in LGBTI law reform and legal issues affecting people living with blood-borne viruses. He was the founding chair of the Victorian HIV Legal Working Group, is a past President of Living Positive Victoria, has served on the boards of the Victorian AIDS Council, Hepatitis Victoria and the Equality Project, and is a member of the Victorian Government LGBTI Justice Working Group. He holds an honours degree in law from La Trobe Law School and is currently a trainee lawyer with Fitzroy Legal Service.  Paul is currently a Supervisory Board member of the HIV Justice Network.

Lawyers for HIV and TB Justice 2018 Training (Johannesburg, 2018)

This playlist contains recordings of a training for lawyers on strategic litigation, legal defense and advocacy on HIV and TB justice from 20-23 February 2018 in Johannesburg, South Africa by the Southern Africa Litigation Centre (SALC), HIV Justice Worldwide, the Joint United Nations Programme on HIV/AIDS (UNAIDS), the Stop TB Partnership, the AIDS and Rights Alliance for Southern Africa (ARASA), and the Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN). The training was funded under the Africa Regional Grant on HIV: Removing Legal Barriers. Resources and more information on the training are available here: http://www.southernafricalitigationce… With thanks to Nicholas Feustel of Georgetown Media.

FCAA Philanthopy Summit: Growing the Global Movement to End Criminalization (Funders Concerned About AIDS, 2017)

This session aimed at philanthropic funders discussed the growing global movement to end HIV criminalization – overly broad and/or vague criminal laws, that unjustly regulate, control, and/or punish people living with HIV solely based on their HIV status. The panel’s participants exemplify the uniqueness of the Robert Carr Fund model of incentivizing collaborative and joint efforts of networks across movements – who join into consortia of, for example, people living with HIV and human rights defenders/lawyers – and the model of linking activities at global, regional and national levels, which catalyzes a more aligned and impactful effect in resisting and fighting HIV criminalization.

Moderator: Sergey Votyagov, Robert Carr Fund for Civil Society Networks (RCF)
Introduction: Luisa Cabal, Joint United Nations Programme on HIV/AIDS (UNAIDS)
Panelists:
• Edwin Bernard, HIV Justice Network (HJN)
• Laurel Sprague, Global Network of People Living with HIV (GNP+)
• Lynette Mabote, AIDS and Rights Alliance for Southern Africa (ARASA)

US: Law review article examines Louisiana's HIV-specific law and its discriminatory nature

This law review article summarizes the science of HIV and the historical background of HIV and HIV-related stigmas in the United States (“U.S.”). It delves into statistics about HIV diagnoses in the U.S. and Louisiana, and the disproportionate impact that HIV has on southern communities and communities of color. It then examines Louisiana’s HIV-specific law, introduced in 1987 and not updated since 1993, identifies the ineffectiveness and discriminatory nature of the law, how it is contrary to public health efforts, and calls for science and logic based revisions to it.  It also reviews several Louisiana HIV criminal cases.  Finally, the article acknowledges that solely changing the HIV criminal statute will not remove the stigma associated with HIV, and proposes mandatory public health training for law enforcement officers and prosecutors to combat implicit biases and HIV stigma.

The full article is availaible here

UK: Whole genome sequencing shows potential as public health tool, but not yet able to definitively prove direction (or timing) in criminal cases

Potential for phylogenetic analysis to show direction of HIV transmission

24 April 2017. Simon Collins, HIV i-Base

Tentative results presented in a poster at BHIVA 2017 suggest that a new approach to phylogenetic testing might have the potential to show the direction of HIV infection between two individuals.

While the results are exciting from a scientific perspective, if the approach proves to be robust, this will raise many ethical and legal questions.

Until now, phylogenetic analysis, where sections of two viruses are compared for similarity, has been able to show similarity but crucially not direct infection (a third person could be involved) or direction of infection. Phylogenetic analysis is most useful for showing when transmissions are definitely not linked, when the two strains are unrelated. When linkage is shown, direction of infection cannot be inferred nor the possibility that both infections originated from intermediary partners.

The current study, presented as a poster by Kate El Bouzidi and colleagues from Brighton and Sussex University Hospitals Trust, used whole genome sequencing (WGS) to look at genetic diversity at each of the >9000 individual nucleotide sites in two linked viruses, with heterogeneous samples being interpreted as being the source virus for the sample which had homogeneity at the same nucleotide site.

WGS performed on 170 samples from a UK MSM cohort identified five linked pairs and these were compared to four control pairs where linkage was already established and direction inferred from clinical notes.

The direction of travel was able to be inferred using WGS for 3/4 control pairs, with the single indeterminate result linked to a sample that was taken so long after transmission took place that natural divergence was too great to determine direction.

WGS-inferred direction was consistent with clinical data for 2/5 case pairs. The lack of a signal in two further case pairs with indeterminate was able to be interpreted as not supportive direct transmission, but missing intermediary partners from whom samples were not available.

Finally, the case where WGS-inferred transmission did not match clinical route, was when the sample from the source partner was taken during primary infection (when HIV is likely to be homogenous at most points) several years before likely transmission to the second partner (whose sample was only taken during chronic infection (when heterogeneity is more likely).

This study is funded by both BHIVA and Public Health England as part of the COMPARE-HIV Study (Comparison of Molecular & Phylogenetic Approaches to Reconstruct an Epidemic of HIV), based at Brighton and Sussex University Hospitals NHS Trust.

Comment

The results are preliminary and clearly the timing of samples is likely to be important when interpreting the results from this approach.

WGS may improve our understanding of transmission networks at a population level but it cannot be used to confirm direct transmission at an individual level and sequence data should always be interpreted cautiously in conjunction with clinical information.

However, if the methodology is supported in larger analyses, the results will raise important ethical and legal concerns, especially in countries where HIV transmission is still criminalised.

Reference:

El Bouzidi K et al. Insights into the dynamics of HIV-1 transmission using whole genome deep sequencing. 23rd BHIVA, 4-7 April 2017, Liverpool. Poster abstract P31.