Feature: Why overly broad HIV criminalisation is doing more harm than good
In many countries around the world, people with HIV are being made criminally liable for HIV prevention.
Despite strong recommendations against this overly broad use of the criminal law by UNAIDS and the Global Commission on HIV and the Law, the latest report from the Global Network of People Living with HIV and the HIV Justice Network highlights that new laws continue to be proposed and enacted, and more prosecutions are taking place than ever before.
The most commonly cited rationale of the criminal law is to deter morally unacceptable behaviour through fear of punishment. Scott Burris and Zita Lazzarini were the first to explore whether US laws that criminalised HIV non-disclosure had the impact that the lawmakers intended.
Zita Lazzarini: We found that whether you lived in a state with a law or without a law had absolutely no effect.
Scott Burris: Criminal law is generally a very blunt tool, anyway. And if you think about it, punishment and fear rarely brings out the best in people, when they’re making individual behaviour decisions. And certainly, when it comes to sex, criminal law has a very limited record of getting people to change their behaviour.
Carol Galletly has added much to the body of evidence on the impact of laws that criminalise HIV non-disclosure. Working with a number of colleagues, she published a number of studies, including this one in 2006 and this one in 2012 examining whether or not these laws are having the impact they were intended to have.
Carol Galletly: We thought of every single way these laws could possibly be effective. Do HIV-positive individuals reduce number of sex partners? Do they choose only positive sex partners more than people who don’t know about the law? Are they abstinent more? Do they practice safer sex more? Do they engage in oral sex or less risky activities? So we looked at all these things and the data just stacked up – there were no significant differences. The strongest predictor of disclosure was actually comfort with disclosure. So what I concluded was, if you really want people to disclose, then what you should probably do is increase their comfort, do interventions, do whatever. And don’t do laws that could jeopardize people disclosing.
Most laws and prosecutions focus on disclosure – in other words, whether or not the person with diagnosed HIV told their sexual partner before having sex. Whilst this may be the right thing to do, does this actually benefit HIV prevention? Eric Mykhalovskiy organised the workshop precisely because his own research found that criminalising non-disclosure was having the opposite effect of what was intended.
Eric Mykhalovskiy: We see how significant now disclosure, or questions around disclosure, are within HIV prevention counselling, to the point that there is too much of a focus. You know, Barry Adam and others have emphasised repeatedly that disclosure is not an effective HIV prevention mechanism. And yet what seems to have happened is that the criminalisation of HIV non-disclosure has placed disclosure at the centre of people’s concerns around HIV prevention. And that is, I think, a serious challenge for people who are enlisted with the responsibility of trying to ensure that HIV transmission is lessened.
Barry Adam is Senior Scientist and Director of Prevention Research at the Ontario HIV Treatment Network and lead author of How criminalization is affecting people living with HIV in Ontario.
Barry Adam: Disclosure has become a bit of a red herring I think, in terms of HIV prevention because HIV prevention can and has for a long time happened without disclosure, anyways. To require disclosure doesn’t necessarily help. Sometimes, it could even hinder the process by creating a false sense of security among those who think that, if disclosure doesn’t happen, that their partner is negative. The social science evidence shows that, when people often get into the disclosure area, it’s in order to give themselves permission to have unprotected sex! People actually do have to know what their HIV status is in order to disclose it. And, there is a good deal of science these days that suggests that, it’s people who don’t know, who are newly infected, who are actually doing a lot of the infection.
Studies by Eric Mykhalovskiy, Chris Sanders and Martin French (the latter two are currently undertaking research studies and have not yet published their findings) have uncovered an unanticipated negative impact of HIV criminalisation on the healthcare workers who test and treat people with HIV, complicating their practice as public health professionals. They found that the criminal law is creating a chill, closing down discussions about HIV on both sides. (An in-depth report on the impact of HIV criminalisation on nursing practice can be found here.)
Chris Sanders: Criminalisation has complicated post-test counseling. Nurses are finding that clients shut down, they become very unwilling to speak openly about their sexual behaviour and they don’t want to share contact information because they’re worried that it might come back if they’re later charged with non-disclosure. And so, it makes nurses’ work more difficult. And that can impact HIV prevention as public health relies on contact tracing to be able to do quite a bit of their prevention work.
Martin French: I’m looking at this in Canada and the United States, and in spite of the fact that there are different approaches to public health I’m seeing some similar effects in terms of the anxiety that a number of providers are feeling about the issue of criminalisation as they counsel patients with respect to disclosure.
Trevor Hoppe found another, more sinister impact on healthcare workers. During his PhD research he discovered that some heath officials in Michigan’s public health system appeared to be invested in prosecuting people with HIV for not disclosing their status, resulting in some potentially problematic outcomes for HIV prevention.
Trevor Hoppe: This is the first piece of evidence that some health departments may be playing a role in facilitating criminal prosecutions. I can understand why people living in some of these communities would think twice before talking to health officials about their lives openly and honestly, given what health officials reported to me.
One of the most worrying aspects of HIV criminalisation is the additional disincentive it plays in a person’s willingness to take an HIV test: a significant number of new infections come from people who are undiagnosed. But testing is not just about knowing one’s HIV status to modify behaviour, it’s also the gateway to accessing HIV treatment and care.
New guidelines from the World Health Organization now highlight that HIV treatment works not only to keep people alive and well for a lifetime, but also prevents new infections by reducing HIV to undetectable levels. Where there is no virus, there can be no transmission. Since treatment is also prevention, then not testing or accessing treatment, hurts not only the individual but also the communities in which they live, harming the broader public health.
Laurel Sprague is the Research Director of the Sero Project, and oversaw their 2012 national HIV criminalisation survey.
Laurel Sprague: We asked people whether they thought it was not reasonable, somewhat reasonable or very reasonable to avoid getting an HIV test, or to avoid accessing treatment if someone tested positive because of HIV criminalisation. Those numbers should be zero. We shouldn’t have legal reasons for people not to get tested. We shouldn’t have a legal reason for people not to access care. And half of our respondents said that it was reasonable to avoid HIV testing because of HIV criminalisation and 42% of our respondents said it was reasonable, somewhat, or very reasonable to avoid getting HIV care once you’ve tested positive.
Patrick O’ Byrne is lead author of the 2013 review article, HIV criminal prosecutions and public health: an examination of the empirical research. He has also studied the impact of HIV prosecutions on gay men and documented how fear of HIV criminalisation has impacted their sexual and testing practices.
Patrick O’Byrne: Nobody – guys who were negative, guys who were positive – could make a distinction between the public health department and the police. It was a single institution. And this is problematic, right? How can you provide health care services when people think that you are a police agency? How do you provide care when people won’t access it? The laws have effectively rendered your HIV prevention health professionals useless.
Richard Elliott is the Executive Director of the Canadian HIV/AIDS Legal Network, and was an intervenor when the Supreme Court of Canada heard HIV criminalisation cases in 1998 and 2012.
Richard Elliott: How can it not have an impact on people and their decision as to whether or not to find out their HIV status, if you risk becoming a criminal. It may not at the end of the day dissuade a large number of people, but I think, it does dissuade a significant number of people and it probably, based on the evidence we have, dissuades some of those who are most likely to actually benefit from learning their HIV status, and all of the potential benefits to them, and others that may flow from that. So, why would we want to create an additional barrier, and why would we want to create a barrier to people actually seeking help from the helping professions? Because if we conscript those helping professions, to basically, become agents of law enforcement, that undermines their ability to help people, and that actually undermines the health of all of us.
Criminalisation is a divisive issue with strong opinions often informed by morality and a desire to achieve justice by punishing perceived wrongdoing. However, understanding the impact of HIV criminalisation on public health is critical to making informed policy decisions.
The 2013 UNAIDS guidance note, Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations aims to ensure that any application of criminal law in the context of HIV achieves justice and does not jeopardise public health objectives.
The guidance can be downloaded here.
The HIV Justice Network has produced an accompanying video, ‘More HARM Than GOOD’ that we hope will be useful for both education and advocacy. Watch and/or download the video on our Vimeo channel: www.vimeo.com/hivjustice/moreharm
More HARM Than GOOD
How overly broad HIV criminalisation is hurting public health
(29 min, HJN, Canada, 2013)
This educational and advocacy video from the HIV Justice Network, filmed at an international meeting on HIV prevention and criminal law in Toronto in April 2013, features interviews with social scientistis, researchers and legal and public health experts from the U.S. and Canada who have studied the public health impact of HIV criminalisation.
Featuring Barry Adam, Scott Burris, Richard Elliott, Martin French, Carol Galletly, Trevor Hoppe, Zita Lazzarini, Eric Mykhalovskiy, Patrick O’Byrne, Chris Sanders and Laurel Sprague
- Written and presented by Edwin J Bernard
- Filmed, directed and produced by Nicholas Feustel
- Further information at: hivjustice.net/moreharm
- Produced by: georgetownmedia.de
US: 'Condoms in prison' debate reveals annual cost of care for a person with HIV in prison
California Health Care Services said taxpayers are paying nearly $30,000 to treat one patient with HIV/AIDS every year. That’s $28,800 for medications and $655.44 for labs. “That cost doesn’t even include clinical staff, diagnostic studies, or other costs,” said Joyce Hayhoe, Director of Legislation and Communications for California Health Care Services.
US: Sero Project and Transgender Law Center highlight the threat to transgender health created by HIV criminalisation
People living with HIV (PLHIV) who identify as transgender or third sex are more likely than any other group to feel that it is reasonable to avoid HIV testing (58%), disclosure of one’s HIV positive status to sex partners (61%) or accessing HIV treatment (48%) because of fear of HIV criminalization and distrust of the U.S. criminal justice system. The new findings from the National HIV Criminalization Survey were presented at the National Transgender Health Summit on May 15, 2013.
“These findings don’t surprise us,” said Cecilia Chung, Senior Strategist at the Oakland, California-based Transgender Law Center. “The data speaks to the long-standing history of stigmatization and discrimination of trans people, especially trans people of color, by the criminal justice system, because of either their race or their gender identity.” Chung was the first trans woman elected to chair the San Francisco Human Rights Commission, and she is currently a board member of the Global Network of People Living with HIV (GNP+).
More than 3,000 people living with and affected by HIV participated in the National HIV Criminalization Survey from June to August 2012, conducted online by the Sero Project in conjunction with Eastern Michigan University. The principal investigator, Laurel Sprague, is the Sero Project’s Research Director, Regional Coordinator of GNP+ North America, and a PhD candidate at Wayne State University in Detroit, Michigan.
Sprague noted, “Laws that criminalize non-disclosure of HIV status raise key issues about community norms, expectations of fair treatment by authorities, privacy and the increased vulnerability of certain communities.”
While the results revealed that HIV criminalization can discourage HIV testing—nearly 25% of HIV-positive respondents said that they knew one or more people who did not get tested for fear of criminal prosecution—when researchers returned to the survey results to closely examine transgender and third sex responses, they found that these particular respondents faced increased levels of vulnerability in relation to the U.S. justice system.
The majority of transgender and third sex respondents living with HIV (57%) reported that they feared false accusations of non-disclosure either a few times or frequently—a figure higher than that of any other group surveyed. Only 14% of transgender and third sex respondents living with HIV felt that a U.S. person living with HIV could get a fair court hearing if accused of non-disclosure.
When transgender and third sex respondents were asked their opinions about HIV criminalization, two out of three respondents (67%) said that non-disclosure of HIV status should not be criminalized. When asked if a sex worker living with HIV should disclose to clients, most transgender and third sex respondents (41%) said it depends on the circumstances. In fact, transgender and third sex respondents were the most likely to focus on the context (“it depends on the circumstances”) when determining whether there should be criminal charges for non-disclosure related to sex, drug use or sex work.
The transgender community’s historically fraught relationship with public health authorities, law enforcement and the criminal justice system also likely affects transgender and third sex attitudes about HIV criminalization.
Sprague shared a range of quotes from the survey to illustrate various nuanced transgender and third sex experiences and opinions regarding HIV criminalization:
• One trans woman explained why she didn’t press charges for non-disclosure: “In order to file charges, I [would have] had to disclose my rape, my [HIV] status and I would have to give up my privacy and be subjected to public scrutiny.”
• A third sex respondent said, “I think in cases of rape, incest and other power- or force-related situations, prosecutions should go forward. Otherwise, NO!”
• Another trans woman said that she didn’t press charges for non-disclosure because of the “difficulty in proving in court that he had infected me—and also accepting that we took equal risk in being intimate without protection.”
For policy makers and public health workers, the transgender and third sex responses to Sero’s National HIV Criminalization Survey should raise concern, especially the survey results that show increased barriers to HIV testing and treatment, as well as deep feelings of legal vulnerability due to HIV criminalization.
The responses highlight a critical need for access to legal education and legal services, safe and confidential locations for accessing health care, and support for spaces where transgender people living with HIV can share their experiences, provide mutual support, and work together to identify resilience strategies and advocacy priorities.
GNP+ and the HIV Justice Network release ‘Advancing HIV Justice: a progress report of achievements and challenges in global advocacy against HIV criminalisation’
A new report released today by the Global Network of People Living with HIV (GNP+) and the HIV Justice Network highlights the tireless work of advocates around the world challenging inappropriate criminal laws and prosecutions for HIV non-disclosure, potential or perceived exposure and transmission.
Advancing HIV Justice shows that advocates around the working to repeal, modernise or otherwise limit laws and policies that inappropriately regulate and punish people living with HIV have achieved considerable success. This is especially the case when policymakers or criminal justice system actors are open to learning more about scientific and medical advances in HIV prevention, treatment, care and support, and involve civil society – led by people living with HIV – to ensure that critical criminal law and human rights principles are followed.
“That is why we welcome the new, detailed guidance on limiting overly broad HIV criminalisation that was released last week by UNAIDS,” says Kevin Moody, International Coordinator and CEO of GNP+. “The guidance will help to continue advancing HIV justice, serving as a powerful new tool for people living with HIV, and those advocating on our behalf, in our work with policymakers and criminal justice system actors.”
Writing in the foreword, Susan Timberlake, Chief, Human Rights and Law Division, UNAIDS Secretariat, notes that Advancing HIV Justice “powerfully demonstrates that civil society advocacy on this issue is not only alive – it goes from strength to strength.”
In the 18-month period covered by the report (September 2011 to March 2013), significant advances were made in terms of:
- building the global evidence base in order to better understand the ‘who, what, where, when and why’ of laws and prosecutions around the world;
- generating persuasive social science that shows exactly why overly broad HIV criminalisation does more harm than good, often achieving exactly the opposite of what law- and policymakers intend in terms of public health and human rights;
- challenging inappropriate or overly broad new laws in Africa, Asia, the Caribbean, Latin America and the United States;
- advocating for law reform in Europe and the United States, including successful repeal in Denmark and modernisation of one of Switzerland’s two laws used to prosecute potential or perceived HIV exposure; and
- addressing legal processes and enforcement, including the creation of prosecutorial guidelines in Scotland.
However, the report also highlights that the road to law and policy reform is not always straightforward or easy, due not only to complex intersections of laws, policies and practices, but also because of each country’s unique social, epidemiological and cultural contexts.
“Despite the many incremental successes of the past 18 months, more work and more funding is required to strengthen advocacy capacity,” says the HIV Justice Network’s co-ordinator, Edwin J Bernard, who co-authored the report with Sally Cameron. “HIV criminalisation is a complex issue. It entails a detailed understanding of diverse aspects of the criminal justice system; collection and analysis of evidence of the scope and impact of prosecutions across local and national boundaries; articulation and argument about complex moral and ethical issues of trust, blame and responsibility; and inclusion of HIV prevention and human rights priorities. Development of strategies against HIV criminalisation relevant to each individual jurisdiction requires time, effort, and the involvement of multidisciplinary experts.”
Advancing HIV Justice: A progress report of achievements and challenges in global advocacy against HIV criminalisation is available as a 52 page pdf that can be read or downloaded at: http://www.advancing.hivjustice.net
Keeping Confidence: HIV and the criminal law from service provider perspectives (HJN, 2013) (2 of 4)
The Keeping Confidence one day conference was a free event to discuss findings from a report that we produced in conjunction with Birkbeck College. For more detailed information on the project please follow this link to the project description page: sigmaresearch.org.uk/projects/policy/project55/
Response Panel
Chaired by Dr Adam Bourne, LSHTM
Ms Ceri Evans, Senior Health Adviser, West London Centre for Sexual Health, Chelsea and Westminster Hospital
Dr Robert James, HIV Patient Representative, Lawson Unit, Brighton and Sussex University Hospitals NHS Trust
Mrs Juliet Reid, Chief Executive, Centre for All Families Positive Health (CAFPH)
Video produced by georgetownmedia.de
Keeping Confidence: HIV and the criminal law from service provider perspectives (HJN, 2013) (1 of 4)
The Keeping Confidence one day conference was a free event to discuss findings from a report that we produced in conjunction with Birkbeck College. For more detailed information on the project please follow this link to the project description page: sigmaresearch.org.uk/projects/policy/project55/
Part 1: Overview of Keeping Confidence report and recommendations
Dr Catherine Dodds, LSHTM
Prof Matthew Weait, Birkbeck College
Introduction by Matt Williams, Monument Trust
Video produced by georgetownmedia.de
Canada: Male Call study finds more than half of gay men with HIV fear being prosecuted for not disclosing their HIV status
Two-thirds of men who have sex with men believe that people with HIV-AIDS should face criminal charges if they fail to disclose their status to a sexual partner. But that number varied a lot depending on circumstance, with 83 per cent saying non-disclosure before anal sex should be a crime, and 42 per cent saying failure to disclose HIV status before oral sex was a criminal act. Only 17 per cent said failing to disclose should never be criminalized. “The consensus is there should be legal measures in place related to disclosure,” Dan Allman, an assistant professor in the Dalla Lana School of Public Health at the University of Toronto, said in an interview. “At the same time, there is a feeling that legal measures won’t have an impact. There’s an innate understanding that disclosing your HIV status is hard and criminal laws aren’t going to make it easier,” he said.
The survey, dubbed Male Call involved 1,235 detailed interviews with men who have sex with men. The research shows that 26.2 per cent of respondents did not know their HIV status because they had not been tested recently; that number jumped to 50.6 per cent among bisexual men. Overall, 67.2 per cent of the men surveyed were HIV-negative, and 6.6 per cent HIV-positive.
Most of those who had not been tested said they were confident they were HIV-negative because their sexual practices put them at low risk. But a significant minority, 17 per cent, said they did not want to know their status, either because they could not deal with being infected or out of fear it could cause legal problems.
The fear associated with being HIV-positive was pervasive. The poll showed that 83 per cent of men worry about being stigmatized because of HIV, while 68 per cent fear being rejected by other gay/bisexual men, and 51 per cent fear being prosecuted for not disclosing their HIV status. 17.8% agreed that in the current legal climate it was better not to know your HIV status.
Full report available here: http://www.malecall.ca/technical-report/
UK: New research calls for better guidance for HIV service providers on criminal law, confidentiality and ethics
Yesterday saw the release of an important new UK study, Keeping Confidence: HIV and the criminal law from service provider perspectives, which explores how HIV criminalisation impacts those who deliver health and social care services for people with HIV.
The report’s lead author, Dr Catherine Dodds, from Sigma Research at the London School of Hygiene & Tropical Medicine, said: “Although HIV health and social care professionals expressed diverse views about their potential role in such cases, they gave a clear sense that criminal prosecutions for the transmission of HIV would not improve public health. Instead, it was most common to hear descriptions of such cases leading to increased stigma, reduced trust between service users and providers, and traumatic consequences for those involved in such cases.”
Study co-investigator, Matthew Weait, Professor of Law and Policy at Birkbeck, Univerisity of London, said: “This important and innovative research demonstrates both the problems that HIV criminalisation creates for clinical and social care providers and the need for solutions at both national and regional level. Care providers working in HIV and sexual health are concerned primarily with the health and wellbeing of their service users – which is of course as it should be; but there is also evidence that criminalisation is compromising their work. Increased awareness and understanding of, and inter-organisational communication about, legal issues is critical, and Keeping Confidence makes practical recommendations as to how that work might be taken forward for the benefit of prevention and support.”
Roger Pebody from aidsmap.com does an excellent job of summarising the study and its findings in this news report:
The study explored how criminal prosecutions for HIV transmission in England and Wales are handled by those who deliver clinical, psychosocial and community support for people with HIV. The report paints a picture of professionals grappling with the difficulties of communicating complex legal information in an appropriate way for each individual. They must weigh up competing concerns and responsibilities, including their own patient’s health and wellbeing, the health of unidentified sexual partners and the legal liability of their own organisation.
The report was launched in central London yesterday at a one-day meeting attended by around 70 HIV service providers, representatives of most of the UK’s community-based HIV organisations, and people living with HIV.
Following presentations of the report’s main findings, a panel consisting of a health adviser, and representatives of community-based organisaton and a people living with HIV discussed the implications for them.
Ceri Evans, Senior Health Adviser at the West London Centre for Sexual Health, Chelsea and Westminster Hospital, highlighted that there may not be a ‘best time’ to inform a newly diagnosed individual of their new legal obligations. Athough she agreed that the post-testing counselling session may not be ideal, she noted that since the criminal law potentially covers all sexually transmissable infections, including genital herpes, and there is usually only a single oppportunity to provide counselling following a new herpes diagnosis, that information about the law might need to be provided to some patients sooner rather than later.
Of note, the report’s fieldwork, involving 75 providers of HIV health and social care services in England and Wales, was undertaken in the latter half of 2012. Since then, the British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) have released an updated position statement on HIV Transmission, the Law and the Work of the Clinical Team which provides clinicians with information and guidance on managing many of the issues highglighted as problematic in the research. Lead author, Dr Mary Poulton, Consultant and Clinical Lad, Sexual Health and HIV, Kings College Hospital, London, outlined the main recommendations and provided case studies that illustrated how the decision-guiding algorithm regarding third-party disclosure might be particularly useful.
The rest of the meeting focused around discussing the report’s recommendations, which were as follows.
National recommendations
1. HIV service professionals will benefit from a single website or webpage that collates practical and accessible information about criminal prosecutions for the sexual transmission of HIV. It will need to be updated as new resources become available, and older ones are revised. New resources should be published as required in order to keep pace with clinical and scientific developments in the treatment of HIV that may impact on legal decision-making. The online resource can also identify the best sources of expert criminal legal advice where those are available.
2. A nation-wide programme of continuous professional development in the criminal law should be available to those who provide clinical and non-clinical HIV services. Topics covered should include: straightforward legal definitions and defence arguments, how and when to raise discussions about legal responsibilities, professional liability, communication skills development through the use of scenarios, and existing policy and practice models.
3. Key contacts with an interest in criminal prosecutions should be identified in each clinical and non-clinical HIV service organisation.This process should feed into the development of an updated list for the explicit use of disseminating information about information and training discussed in recommendations 1 and 2 above.The key contacts will also be utilised as the main organisational contact for the development and dissemination of resources to inform people with HIV about the law in this area.
Local recommendations
4. Existing professional guidance and associated documents should be discussed and adapted for local use. This will translate differently in specific settings, and it may lead to the development of local criminalisation policies or protocols, or values statements in some workplaces. At a minimum, such activities should strive for internal consistency on advice, facilitation and support.
5. Opportunities should be created for clinics and community-based organisations to exchange best practice as it relates to criminal prosecution for HIV transmission and to discuss where they agree and disagree on a conceptual level about the ethics of responsibility and public health in HIV prevention.
6. Alongside the development of local criminalisation protocols, all organisations will need to review their confidentiality policies, ensuring that they are accessible to service users, and compatible with internal agreements about criminalisation.
Whilst there was broad consenus regarding many of the recommendations, implementation will depend on various stakeholders collaborating, as well as sufficient funding.
Of note, currently only Australia has a website on HIV and the law aimed specifically at HIV healthcare professionals. The Australian Association of HIV Medicine (ASHM) online Guide to Australian HIV Laws and Policies for Healthcare Professionals covers civil, criminal and public health law, and also includes reference to national guidance on the Management of People with HIV who Place Others at Risk.
The entire day was filmed by the HIV Justice Network and video of the main presentations and final disussion outcomes will be available soon.