HIV prosecutions: global ranking (AIDS 2012)

Presented by Edwin J Bernard at 19th International AIDS Conference, Washington DC, July 22-27, 2012.

Video produced by Nicholas Feustel, georgetownmedia.de, for the HIV Justice Network

Introduction by Susan Timberlake [00:00]
Introduction by Laurel Sprague [01:54]
Start of Edwin J Bernard’s presentation [03:33]
Slide 01: Overview [04:40]
Slide 02: Global Commission on HIV and the Law [05:19]
Slide 03: Case Study: Take a Test, Risk Arrest [05:21]
Slide 04: Global Overview of Laws and Prosecutions [08:29]
Slide 05: Law Enforcement: Top 30 Jurisdictions [09:47]
Slide 06: Law Enforcement Hot Spots [10:58]
Slide 07: Top 15 Global HIV Criminalization Hot Spots [11:19]
Slide 08: Focus On Africa [12:09]
Slide 09: Focus On Africa: Positive Developments [13:08]
Slide 10: Focus On Europe and Central Asia [14:10]
Slide 11: Focus On Europe and Central Africa: Positive Developments [15:18]
Slide 12: Oslo Declaration on HIV Criminalisation [17:45]

Updated abstract based on final data

Criminal prosecutions for HIV non-disclosure, exposure and transmission: overview and updated global ranking

E.J. Bernard (HIV Justice Network, Berlin, Germany/ Criminal HIV Transmission (blog), Brighton, UK)
M. Nyambe (Global Network of People Living with HIV, GNP+, Amsterdam, Netherlands)

Background: Many jurisdictions continue to inappropriately prosecute people living with HIV (PLHIV) for non-disclosure of HIV-positive status, alleged exposure and non-intentional transmission. Although most HIV-related criminal cases are framed by prosecutors and the media as being cases of ´deliberate´ HIV transmission, the vast majority have involved neither malicious intent nor has transmission actually occurred or the route of transmission been adequately proven.

Methods: This global overview of HIV-related criminal laws and prosecutions is based on latest data from GNP+ Global Criminalisation Scan and media reports collated on criminalhivtransmission.blogspot.com. Final ranking will be based on the total number of prosecutions by July 1 2012 per 1000 PLHIV.

Results: At least 66 countries have HIV-specific criminal laws and at least 47 countries have used HIV-specific (n=20) or general laws to prosecute HIV non-disclosure, exposure or transmission. Despite growing national and international advocacy, prosecutions have not diminished, particularly in high-income countries, with the greatest numbers in North America. Since 2010, prosecutions have taken place in Belgium and Republic of Congo for the first time. In 2011, although HIV-specific laws were suspended in Denmark and rejected in Guyana, Romania passed a new HIV-specific criminal statute. In Africa, the continent with the most HIV-specific criminal laws but with few known prosecutions, Guinea, Togo and Senegal have revised their existing HIV-related legislation or adopted new legislation in line with UNAIDS guidance.

Conclusions: Given the lack or inadequacy of systems to track HIV-related prosecutions in most places, it is not possible to determine the actual number of prosecutions for every country in the world. These data should be considered illustrative of a more widespread, but generally undocumented, use of criminal law against people with HIV. Improved monitoring of laws, law enforcement, and access to justice is still required to fully understand impact on HIV response and PLHIV.

HIV Criminalisation Discourages HIV Testing, Creates Disabling and Uncertain Legal Environment for People with HIV in U.S. (Press Release)

The SERO Project: National Criminalization Survey

Washington, D.C. July 25, 2012

Preliminary data from the Sero Project’s ground-breaking survey of more than two thousand people living with HIV (PLHIV) in the U.S., released July 25, 2012, at the International AIDS Conference in Washington, D.C., reveals HIV criminalization is a significant deterrent to testing, accessing care and treatment for HIV:

• One quarter of respondents (25.1%) indicated they knew one or more people who told them they did not want to get tested for HIV because of fear of prosecution if they tested positive; more than 5% indicated that “many people” have told them this.

• Almost half of respondents (49.6%) felt it could be reasonable for someone to avoid testing for HIV, and 41.6% felt it could be reasonable to avoid HIV treatment for fear of prosecution.

“We expected the survey to show criminalization is a deterrent to HIV testing, but these findings indicate it is an even bigger obstacle than previously believed,” said Laurel Sprague, the project’s principal investigator who is also Sero’s Research Director. “The community’s response has been tremendous; it is obvious there is tremendous concern about HIV criminalization. I look forward to further analysis of the survey responses, including of those who are HIV negative or do not know their HIV status, which will be released in a report later this year.”

Sean Strub, Sero’s executive director and the founder of POZ Magazine, said “This is a wake-up call for public health officials and policymakers who have failed to recognize the extent to which HIV criminalization hampers efforts to combat AIDS. We’ve known for years that HIV criminal statutes do not achieve their intended purpose, to reduce HIV transmission. Now it is clear that these statutes are driving the epidemic, because of how they fuel stigma and discourage HIV testing and accessing the treatment that reduces transmission.”

Strub and Sprague are both long‐term HIV survivors and advocates who have championed self‐empowerment for people with HIV to combat stigma and improve health outcomes for themselves and their communities. The 2,076 people living with HIV in the United States who responded to the Sero survey also painted a disturbing picture of a disabling legal environment for people with HIV:

• More than a third (38.4%) reported they worried a few times or frequently about being falsely accused of not disclosing their HIV positive status; amongst transgendered persons that cigure rose to 60%.

• Respondents in the Midwest (45.9%) and South (40.9%) were more likely to express fear about false accusations than those in the West (35.1%) and Northeast (32.3%).

• Just less than two‐thirds (62.7%) of respondents were not certain whether or not their state required people with HIV to disclose their status to a partner before having sex, with the uncertainty highest in the Northeast (72.4%) and West (71.3%) and South (61.6%) and lowest in the Midwest (40.4%).

• There were significant regional differences amongst those reporting that they were informed about potential criminal liability at the time of their diagnosis. The highest rate was in the Midwest (28.8%) and South (14.8%) and lower rates were seen in the West (7.5%) and Northeast (4.1%).

• Respondents also indicated a lack of clarity about what could subject them to prosecution (47.7% “not clear”, 30% “somewhat clear” and 22.3% “completely clear”). Men reported a greater lack of clarity on this point.

The top reasons cited for disclosure were that it is “the right thing to do”, “to have honest relationships” and “not cause harm to another” or “to protect their partner”, not that it was required by law or because of fear of criminal prosecution. More than 8 in 10 PLHIV in the study said that they believe that sexual partners share equally in the responsibility for HIV prevention.

The detailed survey, which required 20 to 25 minutes to complete, was conducted online in June and July of 2012, and is the first in‐depth examination of the effect of HIV criminalization on people with HIV and one of the largest surveys of people in the U.S. with HIV ever conducted. Further results and analysis will be released later in the year.

The Sero Project is a not‐for‐profit human rights organization combating HIV‐related stigma by working to end inappropriate criminal prosecutions of people with HIV for non‐disclosure of their HIV status, potential or perceived HIV exposure or HIV transmission.

The Sero Project is supported by the Elton John AIDS Foundation, Broadway Cares/Equity Fights AIDS and the H. van Ameringen Foundation as well as many individual supporters. Special thanks to POZ Magazine, the North American regional affiliate of the Global Network of People Living with HIV/AIDS, the Positive Women’s Network, The Body and other community resources that assisted in survey promotion.

Special thanks also to Thom Riehle, Ian Anderson, Edwin Bernard, Regan Hofmann, Cecilia Chung, Julie Davids, Mark S. King and Alex Garner for their expertise and support.

Download the press release here.  More detailed preliminary data can be downloaded here.

 

HIV criminalisation at AIDS 2012 (updated July 23)

The main focus of the International AIDS Conference, taking place right now in Washington DC until July 29th might not be the criminalisation of HIV non-disclosure, potential exposure and transmission, but that doesn’t mean there aren’t plenty of sessions, meetings and activities related to HIV criminalisation taking place.

In fact, the impact of HIV criminalisation is creeping into much broader discussions and sessions, notably how the excitment of all these new prevention technologies (such as the additive preventative effect of treatment for people living with HIV, or ‘treatment as prevention’ and the use of anti-HIV drugs as an prevention tool for people at risk of HIV, or ‘PreP’) must be tempered by the realities that people will not access prevention or treatment if they fear being treated as second-class citizens by the law.

Although there is a ‘Criminalisation of HIV Transmission, Exposure…’ roadmap for the main conference available at AIDS 2012’s programme at a glance (Microsoft Silverlight plug-in required) it doesn’t cover pre-conference meetings or all events in the Global Village.  So here is your handy pictoral guide to what I currently know is going on relating to HIV criminalisation at AIDS 2012.  I hope to see many of you there!

(Apologies for the poor formatting – but info is more important than pretty design)

 Click on the image to see a larger version.

SUSA57     The Politics of Condoms: Cock-ups, Controversies and Cucumbers
      Non-Commercial Satellite
Venue:     Mini Room 3
Time:     22.07.2012, 15:45 – 17:45

15:50 Condoms as evidence – of misdemeanours, crimes and punitive laws; Susan Timberlake (Chief, Human Rights and Law Division, UNAIDS) and Monique Moree (HIV Activist)

MOGS09 HIV and the Law: Insights on How to Advocate for Enabling Legal Environments for African and Black Populations Across the Diaspora
Panel Discussion
Venue: GV Session Room 2
Time: 23.07.2012, 18:30 – 19:30
TUSY03 The Global Commission on HIV and the Law: A Movement for HIV Law Reform   Symposia Session Venue: Session Room 2 Time: 24.07.2012, 14:30 – 16:00
Criminalise Hate, Not HIV panel, Human Rights Networking Zone: Global Village, Tuesday July 24, 18.30-20.00

WEAD02     Get a Test; Risk Arrest
      Oral Abstract Session : Track D
Venue:     Session Room 9
Time:     25.07.2012, 11:00 – 12:30
Co-Chairs:     Susan Timberlake, Chief, Human Rights and Law Division, UNAIDS, Switzerland
Laurel Sprague, United States
GLOBAL VILLAGE: HUMAN RIGHTS NETWORKING ZONE:

WEDNESDAY 25 JULY: 1pm-2pm
HIV criminalisation: personal perspectives (1pm-2pm)
Chair/Facilitator: Edwin J Bernard 5 mins
Speaker: Louis Gay, Norway 10 mins
Speaker: Robert Suttle, USA 10 mins
Speaker: Marama Pala, New Zealand 10 mins
Discussion: 25 min

THAD02     Legal Action, Legal Support
      Oral Abstract Session : Track D
Venue:     Session Room 7
Time:     26.07.2012, 11:00 – 12:30
Co-Chairs:     Ralf Jurgens, Canada
Michaela Clayton, Namibia
THGS04     Is HIV a Crime? Race, Sexuality, Poverty and the Impact of Criminalization
      Panel Discussion
Venue:     GV Session Room 2
Time:     26.07.2012, 13:00 – 14:30
THWS16     Building Evidence: How to Monitor Punitive and Protective Laws and Their Enforcement to Promote Access to Justice and Effect Anti-Criminalization Advocacy
      Community Skills Development
Venue:     Mini Room 10
Time:     26.07.2012, 14:30 – 16:00
Language:           English

Level:                  Intermediate

Target audience: Advocate, Legal professional, Community-based advocate

Seating limits:    50
Co-Facilitators:     Edwin Jeremy Bernard, HIV Justice Network
Lisa Power, THT, United Kingdom
Sean Strub, SERO, United States
Moono Nyambe, GNP+, Netherlands

THCA11     Positive Women: Exposing Injustice
      Screening
Venue:     Global Village Screening Room
Time:     26.07.2012, 18:00 – 19:00
Co-Facilitators:     Richard Elliott, Canada
Alison Symington, Canada

Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance.  A documentary for the HIV Justice Network by Edwin J Bernard and Nicholas Feustel.  Global Village Screeing Room. Thursday 26 July 19.00-19.45.
HIV criminalization laws and the trend towards increased criminlization of people living with HIV, Maurice Tomlinson AIDS Free World, Jamaica in FRSY02 “Getting to Zero Excuses’. Sessions Room 2, Friday 27th July, 11am

Global Commission on HIV and the Law: an analysis of their HIV criminalisation recommendations

Today, the Global Commission on HIV and the Law finally issued its long-awaited report, ‘HIV and the Law: Risks, Rights and Health.’  It was well worth the wait.

“Fundamentally unjust, morally harmful, and virtually impossible to enforce with any semblance of fairness, such laws impose regimes of surveillance and punishment on sexually active people living with HIV, not only in their intimate relations and reproductive and maternal lives, but also in their attempts to earn a living.”

That’s how the Chapter 2 of the report, focusing on the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission begins.  The rest of the chapter pulls no punches either.

Of course, the Global Commmission, and the report itself, cover much more than HIV criminalisation, and it pulls no punches recommending repeal of punitive laws impacting consensual same-sex sex, sex work, drug use and patent laws affecting access to HIV treatment.  However, since this blog – and the focus of my work – is specifically about HIV criminalisation I’m only going to focus on the six pages in the report (and five pages of references) that specifically addresses this issue. 

Five recommendations on HIV criminalisation: click on image to enlarge

To cut to the chase, the report recommends the following:

To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:

2.1. Countries must not enact laws that explicitly criminalise HIV transmission, HIV exposure or failure to disclose HIV status. Where such laws exist, they are counterproductive and must be repealed. The provisions of model codes that have been advanced to support the enactment of such laws should be withdrawn and amended to conform to these recommendations.
2.2. Law enforcement authorities must not prosecute people in cases of HIV non-disclosure or exposure where no intentional or malicious HIV transmission has been proven to take place. Invoking criminal laws in cases of adult private consensual sexual activity is disproportionate and counterproductive to enhancing public health.
2.3. Countries must amend or repeal any law that explicitly or effectively criminalises vertical transmission of HIV. While the process of review and repeal is under way, governments must place moratoria on enforcement of any such laws.
2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.
2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.

The first four points are consistent with the 2008 UNAIDS/UNDP Policy Brief recommendations but go further in terms of tone. For example, using “must” rather than “should”.

Point 2.3 on vertical transmission really needs no further explanation and should be implemented immediately. 

But what did the Commission mean by some of the recommendations, which, when you read them from the point of view of a legislator, or someone who can affect policy in the criminal justice system, might not be quite as clear as they could be?

And what about point 2.5 recommending that anyone imprisoned for HIV non-disclosure, potential exposure or non-intentional transmission have their case reviewed?  Although it doesn’t spell out the criteria for review, they should be consistent with the International Guidelines on HIV and Human Rights published by UNAIDS and the Office of the United Nations High Commissioner for Human Rights (OHCHR).  Since 1998 they have recommended that in order for someone to be convicted, “the elements of foreseeability, intent, causality and consent [must be] clearly and legally established to support a guilty verdict….” If we now consider that the Commission recommends that only intentional and malicious transmission should be a crime, if the above criteria have not been met (and in most cases they have not), the Global Commission recommends immediate release from prison, a pardon and removal of criminal records (and in the US and Canada, removal from the sex offender registry).

I asked Professor Matthew Weait, who served as a member of the Technical Advisory Group for the Commission (the TAG), with particular responsibility for HIV criminalisation about how we should interpret recommendations 2.1, 2.2 and 2.4 in the real world.

The excellent working paper that he prepared for the Commission, The Criminalisation of HIV Exposure and Transmission: A Global Review is also now available to download. A second paper, Criminalisation and the Moral Responsibility for Sexual Transmission of HIV by Matthew and his fellow TAG member, Professor Scott Burris is also now available.

Q: In 2.1 Does the Commission only recommend repealing laws that explicitly criminalise non-disclosure, exposure or transmission?  What, for example, does that mean for Canada, which uses general laws to prosecute non-disclosure?

It’s a good question!  Before I answer it, can I emphasise that what I say here should in no way should be seen as reflecting the views or interpretation either of other TAG members, the Commissioners, or the UNDP Secretariat that provided logistical and other support.  They are personal views.  So – with that in mind – I think it’s important to read this Recommendation in the context of the Report as a whole. What is abundantly clear is that the Commission believes that only the actual and deliberate transmission of HIV may legitimately be criminalised, and all the Recommendations need to be read in that light. This means, in my view, that countries which criminalise HIV under their general laws are also being addressed here.  The reason is that in many such countries it is only HIV transmission, exposure and non-disclosure which is prosecuted in the criminal courts under general provisions which could also be used in the context of other diseases.  The fact that other diseases are not, or extremely rarely so, means that HIV is – to my mind – explicitly criminalised.  Just because HIV is criminalised under a general law doesn’t detract from the fact that such criminalisation is explicit in practice.  You’ll have to follow this up with the Commission though!

Q: In 2.2 Does the Commission mean that law enforcement authorities can prosecute for HIV exposure and non-disclosure where there is proof of intentional or malicious transmission?

I don’t think so, no.  The “must not” construction of the Recommendation does not imply the opposite, especially where to read it this way would be against the entire tenor of the Report. It is very important, in my view, that law enforcement authorities do not take this as a “green light” – not only because it would lead to over-criminalisation (belt and braces) – but it would serve no purpose.  

Q: In 2.4 Does the Commission suggest that prosecutions can still take place that aren’t malicious?  How do you prosecute “with care”?

This Recommendation is in permissive language, similar to that used in the UNAIDS 2008 Policy Guidance, and does not – I think this is important – mandate criminalisation as such.  It seems to me to be intended to provide states with a “let out” clause, reflecting the views of many in the wider HIV policy community, and is politically pragmatic and realistic. Some might think it is a unfortunate that this is in a list of Recommendations, but I think I understand why it has been. It might have been better to phrase the Recommendation in the form, “If countries wish to criminalise HIV, they should only do so in cases of actual and intentional transmission”, but I don’t think we should get too hung up on the exact language here. As with the other Recommendations, it has to be read in the light of everything else in the Report, where it is clear that Commission is arguing for the most restrictive approach possible. It will also, by the way, be important to see whether the Report itself addresses in more detail what is meant by intentional and malicious. Different jurisdictions interpret these terms is in a variety of ways – some equating them with knowledge of status, some with knowledge of the risk of transmission, and some with deliberate or purposive intent (or a combination of all these). The fact that the Commission uses the term “malicious” in Recommendation 2.2 suggests that it has in mind deliberate and purposive intention

As for question of pursuing prosecutions ‘with care’, it is clear that the Commission has affirmed what has been emphasised in a number of recent policy documents, including a recent initiative of UNAIDS.  The highest (I would personally have preferred that, rather than “high”) is necessary when dealing with liability based on expert evidence (as transmission cases typically are, at least where the scientific analysis facilities are available).

Catherine Hanssens highlights the problem with US HIV disclosure laws

This morning, the Global Commission held a press conference that featured several of the Commissioners: US Congresswoman Barbara Lee; Canada’s Stephen Lewis (Co-Director and Co-Founder of AIDS-Free World); and His Excellency Mr. Festus Gontebanye Mogae, former President of Botswana.

Three members of civil society also participated: Nevena Ciric, More than Help, AIDS +, Serbia; Maurice Tomlinson, AIDS-Free World, Jamaica and Nick Rhoades, Positive Justice Project, The Center for HIV Law and Policy, United States.

Nick Rhoades spoke with clarity and power about the lessons learned from his own terrible experience. HIV criminalisation wastes money, harms prevention and human rights, he concluded. Return sanity, science and justice to HIV laws.

I was convicted in 2008 under Iowa’s law titled “criminal transmission of HIV” although HIV was not actually transmitted.  This involved a one-time, consensual sexual encounter with another adult.  My viral load was undetectable, I used a condom – and again, I did not transmit HIV.  However, none of these facts mattered in the eyes of the law.  The judge imposed the maximum sentence of 25 years in prison and the requirement to register as a sex offender for the rest of my life.  After sentencing, the judge was subject to a significant amount of pressure from advocates in the U.S. and even Europe – requesting my sentence be reconsidered.  After being incarcerated for over a year, he released me on five years probation, but I am of course, still a sex offender. [Nick is now appealing his conviction.]

During my course through the correctional system, I transferred facilities four times.  Each time I was transferred, I would be either without medications or missing certain medications for a period of days. And when I was released, I had lost my place on the AIDS Drug Assistance Program, so I was put on a wait-list. The correctional system offered no assistance in finding a social worker or medication assistance once I was released from prison.

The personal toll this has taken on me and my family and friends cannot be measured.  This has caused great mental anguish, financial burdens and major professional barriers for me, now that I am a sex offender.  I have been virtually unemployable.  I am fortunate enough now to be employed from home by The Center for HIV Law & Policy, but most aren’t so lucky.  To this day, I deal with terrible depression.  It’s not easy.

What’s more, the price to enforce these archaic laws is considerable.  The approximate cost to tax-payers to incarcerate just one individual in Iowa – factoring in the cost of medications and routine medical care is approximately sixty-five to seventy thousand dollars annually. This cost is borne by tax-payers and doesn’t include the lost income and contribution to society that incarceration causes. Then consider the price to supervise people convicted under these laws while on probation or parole – often being forced to add in the costs of monitoring offenders on the sex offender registry – and the public is paying an incredible amount of money for enforcing laws that, more often than not, are punishing people for not transmitting HIV.  In many cases, such as mine, taxpayers are paying for the enforcement of laws that punish people with HIV who actually follow the primary prevention messages of public health counselors: stay in treatment, keep your viral load as close to undetectable as possible, use condoms – and otherwise, keep sex safe[r].

These laws enhance stigma that cripples people living with HIV/AIDS from accessing services. They make disclosure issues much more difficult due to ramifications one may face with a mere accusation. I also believe stigma, made thicker by these laws, is keeping people from getting tested.

Furthermore, I have been a member of the Iowa HIV Community Planning group – chaired by the Iowa Department of Public Health – since 2009.  I see all the data.  This year, the Iowa Department of Public Health’s prevention-based budget faced a 25% decrease which will eventually grow to 55% over the next five years. Dollars marked to treat people in care are next for slashing.  Those in care and with undetectable viral loads are up to 96% less likely to transmit the virus, yet we are cutting funding away from proven HIV prevention programs while increasing costly prosecution and imprisonment of people like me living with HIV.  When one considers that there is no evidence that these laws have any impact on people’s sexual behaviors, it is clearly not an effective use of our resources while infringing on individuals’ human rights and working in conflict with public health goals.

Criminal laws and policies that target people based on their HIV status must be repealed.  Please support Congressperson Barbara Lee’s “Repeal HIV Discrimination Act” now, and engage with those who are promoting the movement to return sanity, science and justice to the law’s treatment of HIV.

Following Nick’s powerful testminony, much of the rest of the Global Commission press conference mostly focused on HIV criminalisation in the US and Canada – as it should since the vast majority of prosecutions take place in these two countries, a fact highlighted by Stephen Lewis and echoed by Nick Rhoades.

I was very honoured to be quoted in the report.

I asked Rep. Barbara Lee how it is posssible to change these bad laws when it appears that they have popular support. “Modernising these laws won’t be easy,” she said. “But I have to tell you that the public isn’t really aware of these laws. Once you explain it to them, they’re shocked. What we have to do is mount public education campaigns about these laws. At state level, many state legislators don’t know these laws are on the books, and they can change them if there is the political will. So we need public and political education and civil society support for a political movement to hold politicians accountable. But… yes we can!”

As for other countries using general criminal laws to prosecute non-disclosure, potential exposure and transmission, in the next few months UNAIDS will be releasing a policy consideration document that will help countries understand exactly how to limit their application through a better understanding of HIV science as well as public health and human rights principles. 

There’s going to be a lot more happening around the Global Commission’s Report and all of the amazing evidence the Commission accrued during it’s two year existence.  I recommend spending time on the Global Commission website where you will now find a treasure trove of documents to help further anti-criminalisation advocacy and eventually lead to HIV justice for all.

Norway: Prof. Matthew Weait delivers stirring clarion call to recognise harm of HIV criminalisation

Yesterday Professor Matthew Weait, Professor of Law and Policy at Birkbeck College, University of London delivered a stirring lecture to the public health professionals involved in implementing Norway’s HIV strategy.  As Norway is currently reconsidering its criminal code as it relates to HIV and other infectious diseases, ‘Criminalisation and Effective HIV Response’ was a clear clarion call to “recognise that HIV is not a legal problem capable of a legal solution, but a public health issue to be dealt with as such.”

What I would urge you to recognise is that the appeals for change are being made not only by people living with HIV and the civil society organisations advocating on their behalf, but increasingly by health professionals, virologists, epidemiologists and others who have come to recognise that punitive responses to HIV are counter-productive and damaging in efforts to respond effectively to the spread of the virus. This is a critically important point, and their voice needs to be heard.

With Matthew’s permission, I am publishing the entire lecture below.  You can also download the full text (with full detailed footnotes and references) from Matthew’s blog.

Professor Matthew Weait in Oslo
Courtesy of Charlotte Nördstrom

As a country which many in the world look to for progressive policy-making grounded in evidence and human rights principles, Norway’s response to HIV is not simply a matter of national importance, but is of significance both to the developing countries to which it provides economic and other assistance in the fight against endemic HIV, and to high-income countries whose epidemics are similarly limited and concentrated in particular population groups.

Your current national strategy – Acceptance and Coping – states as follows:

The comprehensive aim of this strategy is that at the end of the strategy period, Norway will be a society that accepts and copes with HIV in a way that both limits new infection and gives persons living with HIV good conditions for social inclusion in all phases of their lives.

The strategy document sets out a number of specific goals, each of which discusses measures that will be taken in order to deliver on the strategy. My focus today is on the way criminalisation of HIV transmission and exposure might impact on that strategy. I will start, though, with some background and context.

1. International Thinking and National Law

At the 26th special session of the UN General Assembly in 2001, States party to the International Covenant on Economic, Social and Cultural rights (including Norway) declared their commitment to

… enact, strengthen or enforce, as appropriate, legislation, regulations and other measures to eliminate all forms of discrimination against and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS and members of vulnerable groups …

This commitment is yet to be realised. Since the beginning of the epidemic new and existing legislative measures have been introduced and enforced that impede rather than further the central goal of reducing onward transmission of HIV, of minimising the spread of the epidemic, and protecting the rights of PLHIV and those most at risk of infection.

In a 2010 Report, the UN Special Rapporteur on the Right to Health referred to this commitment in the context of the criminalisation of HIV transmission and exposure. Drawing on the best available evidence he emphasised that criminalisation has not been shown to limit the spread of HIV, that it undermines public health efforts and has a disproportionate impact on vulnerable communities.

Drawing on the UNAIDS International Guidelines on HIV/AIDS and Human Rights and more recent UNAIDS/UNDP policy, he reiterated that the criminal law should only be deployed in very limited circumstances. In particular, people should not be prosecuted where there is no significant risk of transmission, where they are unaware of their HIV positive status, do not understand how HIV is transmitted, have disclosed their status (or honestly believe their partner to know it), failed to disclose because of a fear of violence or other serious negative consequences, took reasonable precautions against transmission, or have agreed on a level of mutually acceptable risk.

Norway, in common with most other countries, falls significantly short of the UNAIDS guidance and of the Special Rapporteur’s recommendations. Its current criminal law imposes liability irrespective of a person’s viral load, those who transmit HIV non-intentionally, and on those who merely expose others to the risk of infection. Also, and more exceptionally, it allows for the criminalisation and punishment of those who engage in unprotected sex, even when they have disclosed their HIV positive status to their partner and where the partner has consented to the risk of transmission. Although its penal code allows for the criminalisation of other serious diseases, almost all cases that have been brought to the courts have concerned HIV – and so although it is not an HIV-specific law in theory, the practice is very different.

2. The Enforcement of Law

This use of the criminal law has placed Norway – along with its Scandinavian and Nordic neighbours, at the top of the leader board of HIV criminalisation in Europe, and very high globally. When we look at rate of convictions per 1000 PLHIV in the European region, we see a higher rate of conviction in northern European countries, especially those in Nordic and Scandinavian countries.

This variation in intensity of criminalization as measured by convictions seems strange at first glance, especially when you contrast it with the HIV prevalence estimates.

It is especially notable that the bottom three countries with respect to criminalisation (Italy, France, UK) have – conversely – the highest numbers of people living with HIV, and (in general) higher than average prevalence.

What, then, might be explanations for this? We have to be cautious, given the non-systematic nature of the data collection; but I do think that we can begin to understand the pattern if we think about some of the social, cultural and historical differences between countries in the region.

So, for example, we can see that the top five criminalising countries in the region all have laws which impose liability for the reckless or negligent exposure (and thus have a wider potential scope for criminalisation). We can also see that these same countries all have high confidence in their judicial systems (which may go some way towards accounting for a person’s willingness to prosecute after a diagnosis, believing that their complaint will be dealt with efficiently and fairly). Even more interestingly, I think, are the correlations that we see when we look at variations in interpersonal trust, as measured by the World Values Survey.

Here we can see the top five countries in the region with respect to interpersonal trust (and the only countries where the majority of respondents trusted other people), are all in the top half of criminalizing countries, with rates of conviction in excess of 1 / 1000 PLHIV.

These correlations between interpersonal trust and conviction rates in the region become even more interesting when we learn that, according to reliable empirical research, the Scandinavian and Nordic countries have a lower fear of crime, are less punitive in their attitudes to those who commit crime, and – in general – have lower rates of imprisonment for convicted offenders than other countries. If this is the case, why would HIV transmission and exposure criminalization be so high?

My answer to this is tentative, but it seems plausible to suggest that the sexual HIV cases that get as far as court and a conviction are ones which are paradigm examples of breach of trust. It is not inconsistent for a society to have a lower than average generalised fear of crime, or lower than average punitive attitudes, and at the same time to respond punitively to specific experiences of harm, especially when that arises from a belief that the person behaving harmfully could have behaved otherwise and chose not to. Indeed, it seems entirely plausible that where there are high expectations of trust, breaches of trust (for example, non-disclosure of HIV status) are treated as more significant than where value in trust is low. Combine this with countries (such as your own and Sweden) which are committed to using law to ensure public health, and which consequently are prepared to using it to respond to the risk of harm (HIV exposure), as well as harm itself (HIV transmission), and we can see why the pattern of criminalization appears to be as it is.

3. Impact of Criminalisation on PLHIV and Most at Risk Populations

What is the impact of criminalisation?

This is a difficult question to answer, because it depends on what we mean by impact. First, there is the impact on the individual people who have been, and continue to be, prosecuted – people who have been investigated, convicted, jailed and publicly shamed, sometimes simply for having put others at risk, sometimes for transmitting HIV unintentionally, sometimes when they have been completely open about their status with a partner in a relationship which subsequently breaks down. For these people, being HIV positive and failing to live up to the exacting standards the law in this country, and others in this region, demands of them has turned them into criminals with all the social and economic disadvantages that entails. Here we could think specifically of your own fellow country man Louis, who had a charge of transmission dropped when it transpired that he was not the source of his partner’s infection, but is still being prosecuted for exposure.

Second, and critically, there is the impact on public attitudes towards, and responsibility as regards HIV, PLHIV and sexual health generally. Here I am not talking just about the individual experience of the two Thai women in Bergen who stopped in a bar for a drink after shopping and, in front of other customers, were thrown out by the owner because of a recent case in the town involving a Thai sex worker (from that point on, being Thai themselves (though legally in the country and married to Norwegian men) made them guilty, positive and dangerous simply by association). I am talking more of the broader impact that such an example illustrates.

Criminalisation, because it places responsibility for transmission risk on people with diagnosed HIV, serves to reinforce the idea that responsibility for one’s own sexual health belongs with those people. The existence of criminal law provides people who have consciously taken risks with an official mechanism for declaring their victim status. It provides grown, adult, men who have unprotected sex with migrant sex workers an opportunity to deny any responsibility they might have for actually taking responsibility themselves. It provides people (in Norway) who in fact consent to sex with a person who has disclosed his or her positive status the opportunity to take revenge if the relationship breaks down. If we can blame someone else for misfortune, or for being in situations where there is a risk of harm, it is only natural that some of us will; and the sensationalist media coverage (as bad here as it is anywhere in the world) merely serves to confirm this and to sustain the ignorance which the FAFO study highlighted. The headlines are, as you well know, always in the form “HIV-man (or woman) exposes x number of women (or men) to HIV.” They are never in the form “X number of people put themselves at risk by having unprotected sex”.

Finally, I would just like to mention Maria (not her real name) who I interviewed here in Oslo in March 2012. For her, a mother of two children who was contacted by the police about the arrest of a man she had had a sexual relationship with (but who was not in fact the source of her HIV infection) the trial in which she was made to be a complainant has resulted in her being so afraid of legal repercussions that she has not had sex for eighteen months. For Maria, and people like her, a guilty verdict does not necessarily result in closure, and it does not result in a reversal of sero-status. It simply creates another potential criminal who better beware. If, as Acceptance and Coping states, Norway is serious about reducing the number of new infections, enabling people to feel secure in testing and in discussing their positive status more openly, it must recognise that criminalisation of the kind that exists in this country does nothing to assist in those endeavours.

4. Barriers to Change

What, then, are the barriers to change? I ask this question recognising that the Commission led by Professor Aslak Syse has yet to report on its findings and make recommendations, and here I will mention only two.

The first thing I would say here is that here are many in the Scandinavian and Nordic region who are calling for a change in the law. However, there has been, and continues to be, among politicians and policy makers – as well as among some public health professionals – a scepticism about calls to decriminalise non-deliberate HIV transmission and exposure.

Take politicians first. Their scepticism stems, I think, from a belief that arguments in favour of decriminalisation when made by advocacy organisations are – in effect – arguments for being allowed to practise unsafe sex with impunity: without consequence. If a gay man living with HIV argues that he should not be punished if he has unprotected sex, or does not disclose his status to a partner, or happens to transmit HIV during consensual sex (even when this is the last thing he wishes to do) it is very easy to hear that as someone claiming a right to be irresponsible. Put simply, the fact that at a national level in this region the decriminalisation advocacy work has been pursued largely – though not entirely – by civil society organisations has resulted in a less than sympathetic response from those in a position to deliver change – especially those elected politicians whose principal concern is their immediate electorate and public opinion more generally. Nor, for a long time, has the medical profession been entirely supportive. For doctors, especially those in official public health positions at national and regional level, it has been problematic to support those who seem to wish to challenge their role in protecting the health of society generally. For health professionals, arguments for repealing the coercive powers given to them under communicable disease legislation, or of the criminal law that provides the final sanction against those who do not comply with regulations, are easily read as arguments for allowing people with HIV the right to undermine the very thing it is their responsibility to achieve: as a right to put healthy people at risk of disease and illness.

Faced with the way in which their arguments have been interpreted by those with political power, it is small wonder that those appealing for change have met with limited success, despite arguments consistent with those of expert international organisations (such as UNAIDS). What I would urge you to recognise is that the appeals for change are being made not only by people living with HIV and the civil society organisations advocating on their behalf, but increasingly by health professionals, virologists, epidemiologists and others who have come to recognise that punitive responses to HIV are counter-productive and damaging in efforts to respond effectively to the spread of the virus. This is a critically important point, and their voice needs to be heard.

The second factor that sustains the legitimacy of punitive laws in a country, and makes their reform difficult, is the nature of the epidemic in that country. Like other Nordic countries, Norway’s HIV epidemic is localised both socially and geographically. It is predominantly an urban disease affecting MSM and migrants from high-prevalence regions in Africa and Asia. Recognition of this has led to targeted prevention strategies, which is of course welcome; but it has also contributed to the ignorance about HIV among the general population (as shown by the FAFO study), and – critically, I think – to a perception that HIV is, and remains, someone else’s problem. Epidemiologically this may be correct. HIV does not, in general, impact directly on the lives of the vast majority of Norwegians. Few will know someone living with HIV, and even fewer someone who is open about his or her positive status. A consequence of this is that measures which would be seen as gross infringements of civil liberties and personal freedom if applied to the general population are seen as a reasonable and legitimate response. It is as if HIV were a snake that has found its way into a party full of animal rights activists. They cannot simply kill it (that would be wrong, and there are some limits to how one may reasonably respond to phobias) but it is justifiable to take any containment measures necessary to stop it getting any closer.

If you doubt this, consider the following two questions. First, we know that a significant number of new transmissions of HIV are from those who are newly infected and undiagnosed. If the criminal law on exposure and transmission were logical, should it not be applied to all those who have unprotected sex with a partner, who have had unprotected sex in the past, and who do not have a recent negative test result? And if we think non-disclosure is a justification for criminal liability, should we not criminalise all those who fail to disclose the fact that they have had unprotected sex in the past and are uncertain of their HIV status? Being HIV positive is not the relevant risk: infectiousness is.

Why don’t we do that when it is the logical approach? Because such rules would apply to the vast majority of adults in Norway, not merely to a containable and definable sub-section of those adults. And even those who might respond to this proposition by pointing out that undiagnosed HIV is far more common among MSM and migrants would have a hard time justifying criminalising all unprotected homosexual (but not heterosexual) sexual activity, and the unprotected sexual activity of migrant people from high-prevalence regions with native Norwegians. This would be seen, I suspect, as a grossly discriminatory and offensive approach – despite the fact that it makes far more sense than the one that you have here.

As to the second question, consider this. Norway, in common with its neighbours, has a strong tradition of overseas aid, and an official, publicised commitment to providing assistance to developing countries in their fight against HIV and AIDS. Indeed, the Government of Norway has publicly stated that it “ … wishes to focus on how legislation and public services can do more to reduce vulnerability and increase dignity and better cooperation into the fight against AIDS”.

The question therefore is: should Norway encourage the high-prevalence countries to which it provides support to adopt its legal model their HIV response? Put simply, do you think it would be appropriate to criminalise HIV transmission, exposure and non-disclosure where it is endemic? My guess is that your answer to that would be no. But if the answer is no, you must ask yourselves – as matter of fundamental ethics – why not? Why is it appropriate to respond punitively to PLHIV living in Norway when to do so in Botswana, or Malawi, or Swaziland would be wrong?

It seems to me that the answer to this question, even if it is a difficult and uncomfortable one to acknowledge, is that for as long as HIV only affects a small and definable minority punishment is defensible. As long it is “over there”, among the gays and the migrants and the IDUs, and for as long as coercive powers will not impact on the vast majority of the population, criminalisation is something that can be legitimated and politically defended without fear of popular protest. If this is correct, it is particularly offensive and pernicious. Exposure is exposure wherever it takes place in the world; transmission is transmission; HIV is HIV; disclosure is either to be required as a matter of principle, or not. If criminalisation is not something that one country would countenance for human beings in countries in which HIV continues to be a real and immanent threat, and – critically – human beings for whom HIV infection is far less easy to manage, and still results in significant mortality, then on what possible principled basis is it justifiable to use the criminal law against those in one’s own country, where HIV is a manageable condition and where the quality of life for diagnosed PLHIV is as high as it possibly could be? If there is any substance to the claim that the legal response to PLHIV in Norway is discriminatory – which many of its critics suggest – that substance finds its expression here.

5. Final Observations

Norway is placed better than any other nation at the present moment to reform its law so that it complies with UNAIDS recommendations. The work of the Law Commission, which will report in the autumn of 2012, has been more focused and comprehensive than any other initiative I know of. Its report will, I have no doubt, present arguments both for and against the present law, and those arguments will be supported by the best available evidence. Ultimately, though, legal reform is in the hands of politicians, and their concerns extend beyond the logic of prevention. What those politicians need is the support of those who work in the field, at the sharp end of HIV prevention, diagnosis and treatment. Without that, it will be all too easy to adopt minimal reforms that do not go to the heart of the matter, or to kick the report into the long grass and carry on as before. It is not for me to tell you what your law should be. All I can do is urge you to read the Oslo Declaration, published here just recently, and to watch the video accompanying that. All I can do is encourage you to recognise that the authors of the HIV Manifesto, a radical initiative demanding the repeal of paragraph 155 of the Penal Code, was not written by people who simply want to have sex without consequences but by intelligent, rational and thoughtful people. All I can ask you to do is to recognise that HIV is not a legal problem capable of a legal solution, but a public health issue to be dealt with as such. All I can suggest is that in thinking about this complex topic you ask yourself the following simple questions.

Does criminalising non-deliberate HIV transmission and exposure assist you in your prevention work?

Does it contribute to increasing accurate and helpful knowledge and understanding about HIV and to the de-stigmatisation of people living with the virus?

And does criminalisation make achieving the aims set out in Acceptance and Coping easier to achieve?

If the answer to any or all of these questions is no, then the arguments for HIV criminalisation of the kind and intensity that currently exist in this country are not, I would suggest, as strong as those against.

Voices from the Field:
How Laws and Policies Affect HIV Responses

(5 mins, István Gábor Takács, 2011)

Delivered at the 29th meeting in December 2011, UNAIDS PCB NGO Delegation’s 2011 Report focuses on the importance of the legal environment to national HIV responses. For its findings, the NGO Delegation conducted a series of 27 focus groups, involving more than 240 participants from every region of the world.

This video, produced by István Gábor Takács of the Hungarian Civil Liberties Union, highlights the report’s key findings and recommendations to the Joint United Nations Programme on HIV/AIDS (UNAIDS) board and its Member States with regards to HIV strategies and related laws and policies.

Important new research project on HIV criminalisation and law reform in Nordic countries by Prof. Matthew Weait

Following on from yesterday’s post on advocacy efforts underway in Sweden, other Nordic countries and Switzerland,  my friend and colleague, Matthew Weait, Professor of Law and Policy
at Birkbeck College, University of London is about to undertake an important new research study in Denmark, Finland, Norway and Sweden next Spring.

With Matthew’s permission, I’m replicating the note he sent me with all the details and further background. If you can help, please contact Matthew directly, or leave a comment on my blog.

The Decriminalization of HIV Transmission and Exposure: Advocacy, Activism and Law Reform in Denmark, Norway, Finland and Sweden

Dear Friends and Colleagues,

I am writing to ask if you would be willing to assist in a research project that I will be undertaking in Denmark, Finland, Norway and Sweden in March / April 2012.  The project is summarised and discussed in more detail below, but put at its simplest it will be exploring the ways in which HIV activists and others have sought to reform criminal law concerning HIV transmission and exposure in the region.  My aim is to improve our understanding of advocacy and activism in this field, and to gather evidence about what works and what doesn’t.  Although we have an increasing amount of data about the effects of criminalization, there is very little evidence about how civil society has responded to criminalization, and I am hoping this project will not only provide that evidence but assist people elsewhere in their reform efforts.

As explained below, the research will be conducted primarily through interviews with those who have been involved in reform efforts, and I would like to speak to as many people as possible during my time in your countries.

If you are willing and able to participate I would be very grateful if you could contact me and let me know where and when it would be convenient to meet.  I would also appreciate any advice about who else I should try to contact (including, if possible, politicians, lawyers etc who have been involved).  I will be in your cities between the following dates:
9/3 – 18/3
Copenhagen
18/3 – 23/3
Oslo
23/3 – 30/3
Helsinki
30/3 – 5/4
Stockholm

I am funding this research project myself (though I am hoping to get a travel grant from the Wellcome Trust).  It is not sponsored in any way.

I very much hope to hear from you soon.

All best wishes

Matthew

Summary of Project
The project will explore recent initiatives by Scandinavian civil society organizations and activists to the criminalization of reckless and negligent HIV transmission and exposure in the region.  Despite having levels of HIV prevalence which are among the lowest in Europe, survey data indicates that the Scandinavian countries have among the highest rates of criminalization (as measured by convictions per 1000 people living with HIV (PLHIV)).  This is not only counter-intuitive, when research shows that these are countries which have lower than average imprisonment rates and that their citizens are, in general, less punitive in their attitudes towards offending behaviour than those elsewhere in Europe, it ignores UNAIDS best practice guidance on the use of criminal law as a response to the epidemic. The principal goal of the project is to contribute to our understanding of the effectiveness or otherwise of law reform strategies in the field of HIV and public health.  If, as experts agree, the inappropriate use of criminal law impedes HIV prevention efforts and contributes to the stigmatization of PLHIV, it is important to understand the dynamics of, and barriers to, legal reform.

Background
The European region is suffering from an epidemic of criminalization.  Across the continent, people living with HIV are being investigated, prosecuted, convicted and imprisoned for non-deliberate HIV exposure and transmission, contrary to the best practice guidance of UNAIDS and other international organizations concerned with preventing the spread of HIV and promoting the health and human rights of PLHIV.   It is an epidemic that is impeding efforts to normalize HIV and reduce stigma and to affirm the importance of shared responsibility for sexual health.  It is an epidemic whose impact is felt especially by people who already experience particular social and economic exclusion and vulnerability.  It is an epidemic that, in theory at least, has created some 2.2 million potential criminals in Western and Central Europe.

Although all but a few countries in the region have laws which criminalize HIV transmission and exposure, the scale and intensity of their enforcement is not evenly distributed.  Based on available data relating to HIV prevalence and convictions per 1000 PLHIV, there is a marked difference between the Scandinavian countries (Denmark, Sweden, Norway and Sweden) and those further south.  The former, despite having significantly lower HIV prevalence than the European average, have a markedly higher rate of criminalization.  Sweden and Denmark, for example, have conviction rates of 6.12 and 4.66 per 1000, while the rates for France and Italy are 0.1 and 0.74 respectively.

There is a number of possible explanations for this increased resort to criminal law in Scandinavia compared with elsewhere (including higher levels of inter-personal trust, greater confidence in judicial institutions, and a tradition of robust public health laws), but whatever the causes are, it has resulted in concern among HIV activists and civil society organisations (CSOs) in the region, who have – over the past few years especially – mobilised in efforts to repeal and reform laws and / or constrain their enforcement.

Research Questions
This research project is concerned with the work of these activists and CSOs, and specifically with understanding:

  1. what their motivations for legal reform have been;
  2. how they have organised nationally and regionally to try and achieve that reform;
  3. how they have developed their policy agendas
  4. whether, and if so how, they have engaged and communicated with both (a) PLHIV and key groups especially vulnerable to HIV infection and (b) the wider population to achieve “buy in” and broader legitimacy for reform efforts;
  5. how they have engaged with policy makers, politicians, and government;
  6. the political, institutional and other barriers to reform; and
  7. what the results and consequences of reform efforts have been to date, and what they anticipate for the future.

Aims
These questions all focus on an attempt to understand better the ways in which civil society responds to the impact of law on PLHIV.  By focusing on a region in which punitive law has been deployed disproportionately, and where there established and comparatively well-resourced organisations, the research will contribute to our understanding of how expert groups committed to HIV prevention and human rights protection mobilise in the face of what they perceive as a threat to the constituents whose interests they represent.  In so doing, the research will provide original data about the dynamics of health activism and the impact of activism on law and policy.  Two further aims are to provide a practical resource of value to HIV activists and organisations elsewhere in Europe and a record that will contribute to the oral history of the HIV epidemic in Europe.

Matthew Weait’s Background in the Area
I have worked and published in the field of law and HIV for more than a decade, specifically in the area of criminalization.  For the past five years I have been involved at an international level with work on this subject: as a consultant for the EU Agency for Fundamental Rights, HIV in Europe, WHO Europe and UNAIDS, and as an invited expert at their criminalization policy development meetings, and most recently as a member of the Technical Advisory Group for the UNDP-led Global Commission on HIV and the Law.  As a contributor to the policy development work of these organisations I have contributed to a number of important outputs, including a report on a rights-based approach to HIV in the EU (2010), the WHO Europe Technical Consultation on the Criminalization of HIV and other STIs (2007), and the UNAIDS Criminal Law and HIV Policy Brief (2008).  For the Global Commission I was commissioned to write the Report on Criminalization of HIV Transmission and Exposure across the world.  In October 2011 I was invited to give evidence to the Working Group of the Norwegian Law Commission that has been tasked to consider reform of its transmission and exposure laws, and in November 2011 I gave a plenary lecture on this subject at an international sexual health conference in Stockholm.  In addition to this policy work I have published widely in peer-reviewed journals, both alone and with colleagues in other disciplines, and have written a monograph on the subject.  All of this has impressed on me the importance both of understanding the dynamics of law reform in the field, and of developing a stronger, empirically grounded, evidence base.  I see this project as a small, but significant, attempt to do both these things.

Methodology
The research will be qualitative, based primarily on semi-structured interviews and supplemented by policy and other documentation produced by respondents and their organisations.  The analysis will be undertaken using grounded theory (Glaser and Strauss, various dates), coding the data in order to generate concepts and categories so that a theory of law reform initiatives in this particular area may be developed.  It is also intended that the original interviews be made available (subject to participant consent) as a non-academic activist resource.

Relevance of the Project to Policy and Practice
As explained above, the project is highly relevant to policy and practice and will make an original and significant contribution to our understanding of the ways in which HIV activists feed into and influence (or fail to influence) law reform.  In using the data to develop a theory of law reform efforts in the particular area of HIV criminalisation it is hoped that the research will provide a resource of use to researchers interested in health policy making and activist participation more generally; in making available the raw interview material as audio, it is hoped that the research project will provide a resource for activists in other countries and regions who wish to learn about the experience of the Scandinavian peers.

Punitive Economies: The Criminalization of HIV Transmission and Exposure in Europe

Last week, Professor Matthew Weait presented this excellent paper at The Future of European Prevention Among MSM Conference (FEMP 2011) in Stockholm, Sweden.

I’ll also quote from the introduction here, but the entire paper is a must-read, and can be dowloaded here.

The European region is suffering from an epidemic of criminalization. Across the continent, people living with HIV are being investigated, prosecuted, convicted and imprisoned for non-deliberate HIV exposure and transmission. It is an epidemic that is causing significant harm: not only directly – to the people who are being subjected to harsh and punitive responses – but indirectly, to efforts aimed at normalizing HIV and reducing stigma, to HIV prevention work, and to attempts to affirm the importance of shared responsibility for sexual health. It is an epidemic whose impact is felt especially by people who already experience particular social and economic exclusion and vulnerability. It is an epidemic that has created, based on UNAIDS HIV prevalence estimates for 2009, some 2.2 million potential criminals in Western and Central Europe. It is an epidemic that we have to respond to collectively, and which for we have to find a cure.

In this paper I will do three things. First, I will provide an overview of the scope, extent and distribution of criminalization in the region, and in doing so to emphasise the disparities that exist and the problematic consequences of these disparities for PLHIV. Second, I will discuss what I understand to be the reasons for criminalization, and its variation across countries. Third, and bearing in mind these reasons and variations, I will discuss some of the responses which civil society organisations and others have been making to criminalization, and at additional interventions we might consider exploring and developing.

The paper is especially timely given important developments in Switzerland and the Nordic countries, where law reform is ongoing in Denmark, Norway and Switzerland, and civil society advocacy moving towards law reform is taking place in Finland and Sweden.

One of the most interesting aspects of Prof. Weait’s paper is that he finds a correlation between attitudes towards interpersonal trust and the high per capita conviction rates in the five countries mentioned above, which helps explain why the criminal law’s approach to HIV in these countries focuses on public health rather than human rights.

These correlations between interpersonal trust and conviction rates in the region become even more interesting when we learn that, according to reliable empirical research, the Scandinavian countries have a lower fear of crime, are less punitive in their attitudes to those who commit crime, and – in general – have lower rates of imprisonment for convicted offenders than other countries. If this is the case, why would HIV transmission and exposure criminalization be so high?

My answer to this is tentative, but it seems plausible to suggest that the sexual HIV cases that get as far as court and a conviction are ones which are paradigm examples of breach of trust. It is not inconsistent for a society to have a lower than average generalised fear of crime, or lower than average punitive attitudes, and at the same time to respond punitively to specific experiences of harm, especially when that arises from a belief that the person behaving harmfully could have behaved otherwise and chose not to. Indeed, it seems entirely plausible that where there are high expectations of trust, breaches of trust (for example, non-disclosure of HIV status) are treated as more significant than where value in trust is low. Combine this with countries (such as those in Scandinavia) which are committed to using law to ensure public health, and which consequently are prepared to using it to respond to the risk of harm (HIV exposure), as well as harm itself (HIV transmission), and we can see why the pattern of criminalization appears to be as it is.

UNAIDS announces new project examining “best available scientific evidence to inform the criminal law”

A new project announced yesterday by UNAIDS will “further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health.”

I’m honoured to be working as a consultant on this project, and although I can’t currently reveal any more details than in the UNAIDS article (full text below), suffice to say it is hoped that this project will make a huge difference to the way that lawmakers, law enforcement and the criminal courts treat people with HIV accused of non-disclosure, alleged exposure and non-intentional transmission.

The UNAIDS article begins by noting some positive developments previously highlighted on my blog, including Denmark’s suspension of its HIV-specific law.  It’s not too late to sign on to the civil society letter asking the Danish Government to not to simply rework the law, but to abolish it altogether by avoiding singling out HIV. So far, well over 100 NGOs from around the world have signed the letter.

The article also mentions recent developments in Norway. In fact, the UNAIDS project is funded by the Government of Norway, which has set up its own independent commission to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people who are alleged to have exposed others, to, and/or transmitted, HIV.  It will present its findings by October 2012.

As well as highlighting some very positive recent developments in the United States – the National AIDS Strategy’s calls for HIV-specific criminal statutes that “are consistent with current knowledge of HIV transmission and support public health approaches” and the recent endorsement of these calls by the National Alliance of State and Territorial AIDS Directors (NASTAD) – it also focuses on three countries in Africa.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

I’d like to add a few more countries to the “positive development” list.

Canada
Last September, I spoke at two meetings, in Ottawa and Toronto, that officially launched the Ontario Working Group on Criminal Law and HIV Exposure’s Campaign for Prosecutorial Guidelines for HIV Non-disclosure.

The Campaign’s rationale is as follows

We believe that the use of criminal law in cases of HIV non-disclosure must be compatible with broader scientific, medical, public health, and community efforts to prevent the spread of HIV and to provide care treatment and support to people living with HIV. While criminal prosecutions may be warranted in some circumstances, we view the current expansive use of criminal law with concern.

We therefore call on Ontario’s Attorney General to immediately undertake a process to develop guidelines for criminal prosecutors in cases involving allegations of non-disclosure of HIV status.

Guidelines are needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner. The guidelines must ensure that decisions to investigate and prosecute such cases are informed by a complete and accurate understanding of current medical and scientific research about HIV and take into account the social contexts of living with HIV.

We call on Ontario’s Attorney General to ensure that people living with HIV, communities affected by HIV, legal, public health and scientific experts, health care providers, and AIDS service organizations are meaningfully involved in the process to develop such guidelines.

Last month, Xtra.ca reported that

The office of the attorney general confirms it is drafting guidelines for cases of HIV-positive people who have sex without disclosing their status.

This is a major breakthrough, but the campaign still needs your support. Sign their petition here.

By the way, video of the Toronto meeting, ‘Limiting the Law: Silence, Sex and Science’, is now online.

Australia
Also last month, the Australian Federation of AIDS Organisations (AFAO) produced an excellent discussion paper/advocacy kit, ‘HIV, Crime and the Law in Australia: Options for Policy Reform‘.

As well as providing an extensive and detailed overview regarding the current (and past) use of criminal and public health laws in its eight states and territories, it also provides the latest data on number, scope and demographics of prosecutions in Australia.

There have been 31 prosecutions related to HIV exposure or transmission in Australia over almost twenty years. Of those, a number have been dropped pre-trial, and in four cases the accused has pleaded guilty. All those charged were male, except for one of two sex workers (against whom charges were dropped pretrial in 1991). In cases where the gender of the victim(s) is/are known, 16 have involved the accused having sex with female persons (one of those cases involves assault against minors) and 10 involved the accused having sex with men. This suggests that heterosexual men, who constitute only about 15% of people diagnosed with HIV, are over-represented among the small number of people charged with offences relating to HIV transmission. Further, men of African origin are over-represented among those prosecuted (7 of 30), given the small size of the African-Australian community.

It then systematically examines, in great detail, the impact of such prosections in Australia.

These include:

  1. HIV-related prosecutions negate public health mutual responsibility messages
  2. HIV-related prosecutions fail to fully consider the intersection of risk and harm
  3. HIV-related prosecutions ignore the reality that failure to disclose HIVstatus is not extraordinary
  4. HIV-related prosecutions reduce trust in healthcare practitioners
  5. HIV-related prosecutions increase stigma against people living with HIV
  6. HIV-related prosecutions are unacceptably arbitrary
  7. HIV-related prosecutions do not decrease HIV transmission risks
  8. HIV-related prosecutions that result in custodial sentences increase the population of HIV-positive people in custodial settings

It notes, however, that

There is a narrow category of circumstances in which prosecutions may be warranted, involving deliberate and malicious conduct, where a person with knowledge of their HIVstatus engages in deceptive conduct that leads to HIV being transmitted to a sexual partner. A strong, cohesive HIV response need not preclude HIV-related prosecutions per se. Further work is required by those working in the areas of HIV and of criminal law:

  • To consider what circumstances of HIV transmission should be defined as criminal;
  • To define what measures need to be put in place to ensure that prosecutions are a last resort option and that public health management options have been considered; and
  • To ensure those understandings are part of an ongoing dialogue that informs the development of an appropriate criminal law and public health response.

 That’s exactly the kind of policy outcome that UNAIDS is hoping for.

In the meantime, AFAO suggests some possible strategies towards policy reform. Their recommendations make an excellent advocacy roadmap for anyone working to end the inappropriate use of the criminal law.

Their suggestions include:

  • Enable detailed discussion and policy development
  • Develop mechanisms to learn more about individual cases
  • Prioritise research on the intersection of public health and criminal law mechanism, including addressing over-representation of African-born accused

  • Work with police, justice agencies, state-based agencies and public health officials
  • Improve judges’ understanding of HIV and work with expert witnesses
  • Work with correctional authorities
  • Work with media

I truly hope that the recent gains by advocates in Australia, Canada, Denmark, Guinea, Norway, Togo, Senegal and the United States is the beginning of the end of the overly broad use of the criminal law to inappropriately regulate, control, criminalise and stigmatise people with HIV in the name of justice or public health.

The full UNAIDS article is below.  I’ll update you on the project’s progress just as soon as I can.

Countries questioning laws that criminalize HIV transmission and exposure

26 April 2011

On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.

A working group has been established by the Danish government to consider whether the law should be revised or abolished based on the best available scientific evidence relating to HIV and its transmission.

This development in Denmark is not an exception. Last year, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people transmitting HIV.

In the United States, the country with the highest total number of reported prosecutions for HIV transmission or exposure, the National AIDS Strategy adopted in July 2010 also raised concerns about HIV-specific laws that criminalize HIV transmission or exposure. Some 34 states and 2 territories in the US have such laws. They have resulted in high prison sentences for HIV-positive people being convicted of “exposing” someone to HIV after spitting on or biting them, two forms of behaviour that carry virtually no risk of transmission.

In February 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD), the organization representing public health officials that administer state and territorial HIV programmes, expressed concerns about the “corrosive impact” of overly-broad laws criminalizing HIV transmission and exposure. The AIDS Directors called for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

Best available scientific evidence to inform the criminal law

These developments indicate that governments are also calling for a better understanding of risk, harm and proof in relation to HIV transmission, particularly in light of scientific and medical evidence that the infectiousness of people receiving anti-retroviral treatment can be significantly reduced.

To assist countries in the just application of criminal law in the context of HIV, UNAIDS has initiated a project to further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health. The project, with support from the Government of Norway, will focus on high income countries where the highest number of prosecutions for HIV infection or exposure has been reported.

The initiative will consist of two expert meetings to review scientific, medical, legal and human rights issues related to the criminalization of HIV transmission or exposure. An international consultation on the criminalization of HIV transmission and exposure in high income countries will also be organized.

The project will further elaborate on the principles set forth in the Policy brief on the criminalization of HIV transmission issued by UNAIDS and UNDP in 2008. Its findings will be submitted to the UNDP-led Global Commission on HIV and the Law, which was launched by UNDP and UNAIDS in June 2010.

As with any law reform related to HIV, UNAIDS urges governments to engage in reform initiatives which ensure the involvement of all those affected by such laws, including people living with HIV.