[Feature] It Takes More Than A Village to End HIV Criminalisation

The proverb says, “It takes a village to raise a child”. But what if a mother in the village is living with HIV, and some of the villagers stigmatise her? What if that stigma creates a situation where the mother living with HIV is unjustly criminalised because of her HIV status? Then it takes more than a village to get justice for that woman. It takes a global movement to end HIV criminalisation to sensitise and train lawyers and expert witnesses.  It takes national communities of women living with HIV to support that woman following her release, and to educate the community in which she lives about HIV.

Introduction

In 2016, a Malawi court convicted a woman living with HIV of “negligently and recklessly doing an act likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code. She had attended a village meeting with her baby which she breastfed as usual before passing the child to her grandmother. Another woman then asked her to hold her baby. It was alleged that this child began breastfeeding briefly before the woman realised what was happening. The child’s mother then reported the incident to the police. The woman was arrested and without legal advice or representation, pleaded guilty, was convicted, and sentenced to nine months’ imprisonment with hard labour.

The circumstances of the case are all the more shocking because women living with HIV are encouraged to breastfeed in Malawi (and in other countries with high HIV prevalence and settings in which diarrhoea, pneumonia and undernutrition are common causes of infant and child deaths) and because HIV-related prosecutions involving breastfeeding are exceedingly rare. Unfortunately, we have seen an increase in the number of such cases since 2016. HJN is working to address this in a number of ways because we believe there should never be prosecutions of women living with HIV for breastfeeding.

In addition, the accused woman was taking antiretroviral therapy. The chances of HIV transmission through even long-term breastfeeding are very low (which is why WHO guidelines recommend it when access to infant formula and clean water are limited) and the chances of transmission during the brief period the baby allegedly fed were infinitesimally small. In fact, the accused woman’s own child, who was routinely breastfed, has not acquired HIV, calling into question any suggestion that she intended to cause harm to the other woman’s child. Perversely, for a system that unjustly condemned her for risking harm to the other woman’s child, her own baby was imprisoned with her, without any arrangements for appropriate feeding and care, negating any notion that the legal system’s purpose was to protect children.

Following media reports of her initial conviction, numerous individuals and organisations – including HJN and our HIV JUSTICE WORLDWIDE partners, ARASA and SALC – became involved in the case, ultimately changing the outcome for the woman and her family, and laying the groundwork for further anti-HIV stigma advocacy and education in the region. Her story demonstrates the vital role that education, training, strong networks, and community play in the pursuit of HIV justice.

Living with HIV-related stigma

When interviewed at her home in 2019, the woman referred to as “EL” talked about her life:[1]

[1] The initials EL are used instead of her full name following a court order of anonymity to protect her privacy. The interview took place in 2019, during the village visit described later in this article.

“As kids, there were the two of us — me and my brother. My parents faced challenges raising us. Finding the basic necessities like soap and food was a tall order, let alone talking about going to school. It was difficult to get learning materials as well as proper clothes to wear at school. I worked hard in class but couldn’t get past Standard 5 at primary school. Eventually I dropped out, and my brother did the same, … My daily life was taken up doing house chores just like any other girl in the village, as well as helping my parents with farming. At 16, I got married.”

EL further described how she was diagnosed HIV-positive in 2015 after a de facto compulsory HIV test at an antenatal visit. She already had two children and was pregnant with her third. She had heard about HIV but did not know much about it. EL said that the healthcare workers provided a lot of assistance, giving her accurate information about HIV, including the importance of adhering to her antiretroviral treatment (ARVs).

EL and two of her children. Photo: Amos Gumulira/UNDP Malawi

EL said that she generally enjoyed life in her village, although at times she was subject to stigma and discrimination:

“When I went to fetch water at the community borehole, people would laugh at me, and whenever I wanted to participate in community work, you would find pockets of community members talking ill about me. Some people used to insult me, calling me names. But I persevered because my relatives, including the Village Headman himself, gave me support and always stood by my side.”

Members of EL’s family also faced discrimination. “Due to lack of information, a lot of people thought HIV was hereditary and because I was diagnosed HIV-positive, this meant that all my family members had HIV, and they were discriminated against,” EL said.

EL wonders if more could have been done to help her fight stigma. In particular, EL gained a lot of knowledge about HIV from the counselling she got when diagnosed, but perhaps she could have been better equipped with information to share with people in her community:

“A lot of people don’t know that if you adhere to ARVs, you reduce the risk of transmitting HIV to others. This information needs to be passed on to many people. There are also other issues to do with ARVs. A lot of people don’t have adequate information on the effects of ARVs and at the end of the day, they start pointing fingers at each other, giving people room to start speculating about issues to do with witchcraft.”

EL’s prosecution had repercussions for her whole village. One woman from the community explained:

“I was there and very close to where EL was sitting. Yes, she was carrying another woman’s child. This other woman had given the child to EL for safe keeping while she went to stand in a queue, but honestly speaking, I didn’t see EL breastfeed the child. I just heard some people who were sitting a distance from where we were sitting, as they started pointing accusing fingers at her.”

She said that things moved so fast that before they could think of anything to stop what she called “the rumour.” It had gotten out of hand and people started saying that EL had intentionally breastfed the child to transmit HIV.

After receiving a summons, EL voluntarily turned herself in at the police station. She was accompanied by the Village Headman (her grandfather) who wanted first-hand information about what crime she was alleged to have committed. That same day, police transferred EL to a larger town, where she was remanded for three days. At the age of 29, this was the first time that EL had ever left her village.

Days later, she appeared in court and the charge sheet was read out. EL recounted that she had not understood what was happening and could not make arguments because she had no legal representation. EL agreed with the summary of events as they were described, so she was found guilty and was imprisoned together with her youngest child.

She described life in prison as “hell”:

“After a week, my brother showed up to give me my ARVs. All this talk about a woman with HIV breastfeeding. I breastfed but I also found it tough to feed my baby while in prison because there was no provision of special food for babies. We were eating nandolo (pigeon peas) almost every day with Msima ya Mgaiwa (maize meal). And there was only one toilet for a cell of more than 50 people.”

After some time, relatives and other members of her community started visiting, giving her money she could use to buy soap and food for her baby. “When we heard from our Village Headman that she had been arrested, we were so devastated”, a woman from EL’s village explained. “We raised funds for some members to go and give her support only to learn that she had been transferred to one town, then another, but some of us did manage on several occasions to visit her and offer our support when she was in prison.”

Then, out of the blue, EL received a message that some people had come looking for her. She went to meet them: a lawyer, Wesley Mwafulirwa, and his paralegal. They explained why they were there and asked if she would like them to appeal on her behalf. She accepted enthusiastically. “I was excited but at the same time I was confused because I could not believe that I could be so lucky to have these people come to help me.”

Fighting the charges

Solicitor Wesley Mwafulirwa had volunteered to attend training to address legal barriers to prison health and human rights presented by the Southern African Litigation Centre (SALC). He travelled from Malawi to South Africa to attend the training which addressed useful regional and international mechanisms, and presented insights about legal practice and strategic litigation to support prison health and human rights, particularly for those facing heightened vulnerability to HIV and TB.

Wesley Mwafulirwa Photo: Amos Gumulira/UNDP Malawi

At the training, two lawyers spoke about their pro bono work. Wesley remembers one of them, Allan Maleche (Executive Director of KELIN), saying that each participant should take at least one case when they go back to their country. It was a turning point in Wesley’s career.

He had not been home long when he saw an article in the newspaper about an HIV-positive person convicted for trying to spread HIV. That person was EL.

Wesley, who lives in a small town in northern Malawi, drove for more than ten hours to get to the jail where EL was incarcerated. He explained his determination, saying “I was so fired up! I’d just come from SALC’s training … and I said, ‘I want to take up this case’.”

Wesley interviewed EL and offered to take her case pro bono. Wesley contacted SALC, who offered technical support. Their first step was to get an order for anonymity to protect EL’s identity and gain greater control over media reporting. Next, they faced an ethical question. They wanted to challenge the constitutionality of the law but that would take a long time. Because EL was in prison, they decided to undertake a criminal appeal instead. They applied for EL to be let out of custody on bail pending appeal. This is usually a difficult application to win, but they were successful and EL was released from prison.

In the appeal, the court was asked to consider whether the conviction could be justified, whether the penal provision was constitutional (arguing it was overly broad and vague), and whether the sentence was manifestly unjust. Wesley used his learnings from the SALC training to raise international principles and instruments relating to sentencing, which the court referenced and upheld. Michaela Clayton, then Executive Director of the AIDS and Rights Alliance for southern Africa (ARASA), and now a member of HJN’s Supervisory Board, provided expert testimony. Another expert witness, Dr Ruth Brand, identified through HJN’s global network, gave expert scientific evidence to show the risk of HIV transmission had been “infinitesimally small.”

The case was heard by Honourable Justice Zione Ntaba, who held that the proceedings in the trial court were irregular and “blatantly bias” against EL, compromising her right to a fair trial. Justice Ntaba found the charge sheet had been defective and therefore EL’s plea should not have been recorded as guilty. She noted the law must be sensitive to the accused’s knowledge or belief (or lack of) that HIV would be transmitted. Justice Ntaba decided the conviction could not be justified, acknowledging human rights principles against the overly broad criminalisation of HIV non-disclosure, exposure, or transmission. EL’s sentence was set aside. (The Constitutional challenge was referred to a full-member panel of the Constitutional Court although the case was not pursued.)

Notably, Justice Ntaba was a member of the African Regional Judges Forum to discuss HIV, TB and Human Rights (a process which is owned and planned by the judges and run with support from UNDP and funding from the Global Fund).

Fighting the stigma

Shortly after EL’s arrest, the Coalition of Women and Girls Living with HIV and AIDS in Malawi (COWLHA) and the Malawi branch of the International Community of Women Living with HIV/AIDS (ICW-Malawi) discussed the case at a roundtable meeting. At first, everyone was surprised and even laughed, questioning how she could have breastfed someone else’s child. They had never heard of a criminal case involving infant feeding and did not understand what they were dealing with.

During their discussions, COWLHA and ICW-Malawi agreed that the prosecution of EL was a manifestation of stigma and misinformation about HIV in the community. They learned more about the unjust measures that EL had experienced, like being imprisoned without being given a chance to be heard and not being given the chance to prepare and take her medication and things she needed to care for her child. COWLHA and ICW decided to get involved.

Representatives from COWLHA and ICW meet with members of EL’s village. Photo: COWLHA/ICW

Concerned that EL could face social and community hostility after her release, COWHLA and ICW planned a visit to the village to provide psychosocial support to EL and to work with traditional community leaders to provide community sensitisation on HIV, addressing issues of stigma and discrimination. Their efforts helped change some community members’ ideas about HIV.

The community formed two support groups— one for youth and another for adults (notably both were predominantly female groups). They have conducted numerous activities, including home visits, supporting children to go to school, helping the elderly with house chores, and they have a garden where they grow vegetables and rice. They hoped to access loans to become self-reliant. They also had a list of issues they wanted to learn more about, including preventing mother-to-child transmission, sexual and reproductive health, positive living, stigma and discrimination, and treatment literacy.

Visiting EL at home

In September 2019, a three-member team comprising Edna Tembo (Executive Director of COWLHA), Charity Mkona (ICW Board Chair), and Peter Gwazayani (media consultant), set out for EL’s village.

The team was welcomed by the Group Village Headman, who took them to EL’s house. EL recognised Edna from the work COWLHA and ICW-Malawi had done in the community previously. EL welcomed the team with a big smile.

EL and her husband looked cheerful as they laid a mat on the veranda of their house for the visitors. Her mother later joined the discussion.

EL was interested to learn that HJN wanted to write about her case and the type of interventions that had been helpful, to share the story with advocates for HIV justice around the world.

EL recounted that when she returned to the village, “most members of my community received me with happiness, particularly my relatives. The day I arrived, they were jubilant. They celebrated with songs that we normally sing during special occasions in the village.”

COWLHA ED Edna Tembo and Charity Mkona of ICW chat with EL, her husband and her mother (at far distance). Photo: COWLHA/ICW

EL lives with her husband, five children and her mother in a compound made up of three grass thatched houses. She introduced her children:

“The oldest is 13 and she goes to school, as do the second and third. The fourth, a little girl, is the child I was with in prison. She has not yet started school. And then there is this one, who I am breastfeeding. She is the fifth one. She has been tested for HIV on two occasions and will be going for the last test soon. The other two tests have come back HIV-negative.”

EL’s accuser and her family still lives in the same village which has presented some difficulties. EL said that on several occasions she had tried to greet them when they passed each other, but she had been ignored. “They don’t talk to me but from deep down in my heart, I have no grudges against them,” EL said.  “I am just living my normal life,” EL says, although now she says that she would never agree to carry anybody else’s child, for any reason.

Moving beyond criminalisation

With respect to the community-level interventions, lawyer Annabel Raw, who worked at SALC during the time they supported the EL case said:

“As lawyers, we would never have thought to consider such an intervention had ICW-Malawi and COWLHA not shared their insights and been willing to support the client and her community. Their work has been so important to ensuring that meaningful justice was done to combat the actual root cause of the prosecution — stigma and discrimination — and to reconcile EL with her community.”

Engaging with the community also influenced ICW-Malawi and COWLHA’s thinking about HIV criminalisation. COWLHA’s Edna Tembo noted that:

Supporting people who have been prosecuted, particularly women, gives them power, … However, it is very important to stress that psychological support is absolutely vital for those who have been prosecuted. That includes family support, and a supportive community environment enabling acceptance of an individual accused.”

Tembo was also quick to emphasise that there is more work to be done. That work includes awareness raising and ongoing support to the community, especially to identify and train volunteers, empowering them to provide services at community level and to link them to health facilities and district offices for continued support and mentorship.

EL carries her youngest child home. Photo: Amos Gumulira/UNDP Malawi

EL described her dreams for the future:

“My wish now is to see my children progress in school so that they become productive citizens in this community and help it grow. That’s my dream. If they get educated, they will be able to stand on their own and support others. My husband is not employed and it is a challenge to get money for school fees for our children. We would love to get a loan or training to have greater knowledge of economic empowerment because we want to be self-reliant. We would then love to lease some land to grow rice to sell to pay back the loan.

“It’s also my wish to see the lives of all people in the community uplifted. We farm but on a small-scale. If we were to be supported with funds, I’d love to see the community establish big rice farms, working in groups, harvesting for consumption and for sale. In so doing, we would be able to uplift our lives for the better.”

Further Information

Learn more about Wesley’s experiences in EL’s case here and here.

Learn more about the African Regional Judges Forum here.

The full High Court judgement is available here, with a summary included here.

Read more about the successful HIV and AIDS Management Act community advocacy here.


This article is based on information provided by ICW-Malawi and COWLHA following their visits to EL’s village, and an interview with Wesley Mwafulirwa published by UNDP. HJN provided financial and logistical support for the village visits thanks to a grant provided to the HIV Justice Global Consortium from the Robert Carr Fund for civil society networks.     

WATCH HIV Justice Live! (Ep 4): How to advocate for prosecutorial guidance for HIV-related cases

The fourth episode of HIV Justice Network’s web show, HIV Justice Live! that streamed live on July 14 is now available to watch on YouTube.  The episode, which our colleagues at the HIV Legal Network called a master class in advocacy” discussed the newly launched UNDP’s Guidance for Prosecutors on HIV-related criminal cases and provided insights into how to work with prosecutorial authorities so that they have a clear understanding of how to – and more importantly how not to – use HIV criminalisation laws.

Guidance like this is a good example of a ‘harm reduction’ approach if you can’t change or repeal HIV criminalisation laws, and adopting such guidance can result in fewer miscarriages of justice, as well as improve the criminal legal system’s understand of, and approach to, people living with HIV.  Once implemented it’s also a good way of holding prosecutors to account.

The Guidance was developed for UNDP by our HIV JUSTICE WORLDWIDE colleagues, Richard Elliott and Cécile Kazatchkine of the HIV Legal Network. The process, which took two years, involved multiple consultations. Several other colleagues, including HJN’s Executive Director Edwin J Bernard, HJN Supervisory Board member Lisa Power, and HJN Global Advisory Panel member Edwin Cameron were part of the Project Advisory Committee.

The episode, hosted by Edwin J Bernard and featuring UNDP’s Kene Esom alongside Lisa Power and Richard Elliott, also included a special edit of HJN’s documentary, Doing HIV Justice, which demystifies the process of how civil society worked with the Crown Prosecution Service of England and Wales to create the world’s first policy and guidance for prosecuting the reckless or intentional transmission of sexual infection.

The full-length, 30-minute version of this documentary is now available as part of a YouTube playlist that also features two other educational and informative videos: an introduction by the CPS’s Arwel Jones with some useful tips about how to engage with prosecutors, and a workshop that took place after the world premiere screening in Berlin, featuring Lisa Power and Catherine Murphy (who helped advocate for the implementation of guidance in England & Wales, and Scotland, respectively) as well as former UNAIDS Senior Human Rights and Law Adviser, Susan Timberlake.

Important new resource, SALC’s HIV Criminalisation Defence Case Compendium, published this week

An important new resource for lawyers defending clients and working on strategic litigation was published by the Southern Africa Litigation Centre (SALC) this week. SALC is one of the newest members of HIV JUSTICE WORLDWIDE Steering Committee.

The HIV Criminalisation Defence Case Compendium was developed to accompany a four-day training for lawyers on HIV and TB criminalisation, due to take place in Johannesburg, South Africa, later this month.

The Compendium aims to provide lawyers with a tool to successfully defend people living with HIV who are being prosecuted for alleged HIV non-disclosure, exposure, or transmission. It catalogues and analyses criminal cases from across the world where “strong defence arguments have resulted in an acquittal or reduced penalty”.

Cases range from prosecutions for spitting or biting to the landmark 2016 Malawi case of a woman successfully released on appeal after having been sentenced for breastfeeding.

To find pertinent cases quickly and effectively, the Compendium is split into three parts:

  • The first section outlines the key issues raised in the judgement, such as proof of intent, and classifies the cases accordingly in an easy to navigate table format.
  • The second section, organised by country, catalogues the categories of argument raised by the defence.
  • The third section summarises the facts of each case and the Court decisions, highlighting the key points.

The Lawyers for HIV and TB Justice: Strategic Litigation, Legal Defence and Advocacy Training will be streamed live on The Southern Africa Litigation Centre Facebook Page between 20-22 February.

The Compendium can be downloaded from the SALC website and is included as the newest resource in the HIV JUSTICE WORLDWIDE toolkit.

 

Canada: Lawyers are asking for current cases and past convictions of non-disclosure to be revisited in light of federal justice department report

Lawyers urge second look at HIV non-disclosure cases, convictions following report

Monday, December 11, 2017 @ 9:25 AM | By Terry Davidson

Lawyers are urging Crown attorneys to re-examine HIV non-disclosure cases past and present following a federal report calling for a curbing of criminal prosecutions in light of evolving science around risk of transmission.

Various Canadian criminal lawyers are saying current cases and past convictions of non-disclosure should be revisited by provincial prosecutors and their attorneys general against the backdrop of the new report, which lays out various scenarios which would involve a low — or even non-existent — possibility of transmission, even if a condom is not used.

The Criminal Justice System’s Response to Non-Disclosure of HIV warns of the overcriminalization of infected people who don’t disclose their condition but are on treatment, have a low viral load and pose a “negligible” risk to a non-infected sex partner.

It goes on to classify HIV as “first and foremost a public health issue.”

After the report’s release, Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins announced they would tell their Crowns to now limit non-disclosure prosecutions, particularly in cases where the infected person “is on antiretroviral therapy” and “where an individual has a supressed viral load for six months.”

Toronto criminal lawyer Michael Lacy, a partner with Brauti Thorning Zibarras and president of the Criminal Lawyers’ Association, said the report should give “guidance” to Crown prosecutors.

“From a legal perspective, the report provides guidance that should eliminate criminal prosecution in those cases,” said Lacy. “Non-disclosure alone will not vitiate consent. Non-criminal responses are being recommended for the vast majority of cases involving public health authorities. At the same time, the report recognizes that there will be some, now hopefully limited, circumstances where the blunt instrument of the criminal law will be the appropriate way to respond to deliberately high-risk behaviour.”

Current standards used to prosecute non-disclosure cases need to catch up with evolving science, the report states.

“Sexual activity, regardless of condom use, with an HIV positive person who is taking HIV treatment as prescribed and has maintained a suppressed viral load … poses a negligible risk of transmission,” it reads.

Still, it stresses “criminal law applies to HIV-positive persons where they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of transmission.”

Criminal law, it states, should not apply to non-disclosing infected people as long as they’ve maintained a suppressed viral load of under 200 copies per millilitre of blood, and that “a person living with HIV who takes their treatment as prescribed is acting responsibly.”

Also, the law should not apply to those who are not on treatment but use condoms or to those who engage only in oral sex, “because the realistic possibility of transmission test is likely not met in these circumstances.”

Instances where risk increases, it states, includes “multiple acts of sexual intercourse,” particularly when condoms are not used, and oral sex involving ejaculation with an untreated infected partner.

It also states that “persons from marginalized backgrounds,” such as gay, Indigenous and black people, are disproportionately impacted.

Released Dec. 1, the federal paper could potentially trigger a new legal chapter in this issue.

In 2012, the Supreme Court ruled in R. v. Mabior [2012] SCC 47 that an infected person was not legally required to disclose their HIV-positive status to a sex partner if the former carried a low viral load and used a condom. But the SCC also left room for tweaking should laws need to adapt with scientific findings and shifting risk factors.

This report instructs all Crown attorneys that they need to examine the science underlying their individual prosecutions and decide whether or not it is still in the public interest to prosecute the cases, and whether or not there is still a reasonable prospect of conviction,” said Toronto lawyer Daniel Brown, head of Daniel Brown Law and author of Prosecuting and Defending Sexual Assault Offence Cases: A Practitioner’s Handbook. “Because the science has evolved so quickly and so much … our perceptions of what created a realistic possibility of transmission, even five years ago, has changed to where we’re at today, and we have to re-examine all of the cases in the court system to determine whether or not they still meet that standard.”

Provincial attorneys general should turn their eyes toward past convictions, he said.

“We can see that there was a substantial amount — not just those who were convicted after a trial — but many people who pled guilty perhaps to minimize the type of punishment that could come to them had they proceeded to a trial … and it is uncertain whether or not they pled guilty in the face of evidence that would no longer withstand scrutiny,” said Brown. “Were these cases where there was a realistic possibility of transmission, or were these cases where the law hadn’t caught up with the science?”

Alberta criminal lawyer Markham Silver also talked about revisiting non-disclosure convictions, using as an example the launching of a coroner’s inquiry into years of botched examinations by disgraced child pathologist Charles Smith.

“Realistically, the attorney general or the ministry of justice of any province can engage in reviews as they see fit,” said Silver. “When they had the situation … in Ontario with Smith … the Crown reviewed a whole rack of cases that dealt with his evidence and made determinations based on new information they had obviously received. … So it’s certainly open to the Crown to do as the Crown sees fit … in any particular provinces.”

Vancouver lawyer Troy Anderson, who recently acted in a non-disclosure case, agrees.

“If you’re looking at the science that says it is essentially no risk of HIV transmission if you are being treated and acting responsibly, then yes, I agree with that absolutely,” he said. “The prosecution services vary from province to province … [but] I think it is absolutely going to follow. I think there is will be a drop in the number of people being prosecuted for this.”

US: HIV Criminalisation Webinar on Dec 7 for criminal defense attorneys about the current state of medicine

2017 FREE Webinar: HIV Criminalization Webinar

On December 7, 2017, the National Association of Criminal Defense Lawyers (NACDL) and The Center for HIV Law & Policy (CHLP), will co-host a webinar on HIV Criminalization that will provide participants with a medical primer about the current state of medicine with regard to HIV research and treatment. This primer, geared toward criminal defense attorneys, but open to all, will be coupled with a discussion on how to use medical research to develop defenses, present the court with mitigation, negotiate favorable pleas for clients, and litigate constitutional, evidentiary, and discovery issues. There will also be a section exploring the ethical issues that attorneys must grapple with when handling these cases. See attached event flyer.

Date:   Thursday, December 7, 2017

When:  1:30 p.m. – 3:00 p.m. ET

Cost:   FREE

CLE credit:  Available for up to *1.5 hours of CLE (general) where self-study credit authorized and approved.

Register:  Click here to register.

* Registrants will be sent a link to the written CLE materials in advance of the webinar.

 

US: Webinar on HIV criminalisation primarily aimed at defense lawyers organised by NACDL and CHLP on Dec 15

On December 7, 2017, the National Association of Criminal Defense Lawyers (NACDL) and The Center for HIV Law & Policy (CHLP), will co-host a webinar on HIV Criminalization that will provide participants with a medical primer about the current state of medicine with regard to HIV research and treatment. This primer, geared toward criminal defense attorneys, but open to all, will be coupled with a discussion on how to use medical research to develop defenses, present the court with mitigation, negotiate favorable pleas for clients, and litigate constitutional, evidentiary, and discovery issues. There will also be a section exploring the ethical issues that attorneys must grapple with when handling these cases.

Date:   Thursday, December 7, 2017

When:  1:30 p.m. – 3:00 p.m. ET

Cost:   FREE

CLE credit:  Available for up to *1.5 hours of CLE (general) where self-study credit authorized and approved.

Register:  Click here to register.

Note:   Confirmed registrants will receive a web link via email the morning of the event.

Registrants will be sent a link to the written CLE materials in advance of the webinar.

Presenters

Dr. David Wohl (Chapel Hill, NC)

David Alain Wohl, MD is a Professor of Medicine in the Division of Infectious Diseases at the University of North Carolina (UNC). He is Site Leader of the UNC AIDS Clinical Trials Unit at Chapel Hill, Director of the North Carolina AIDS Education and Training Center (AETC) and Co-Directs HIV Services for the North Carolina state prison system. In 2014, he became Co-Director of the UNC-Duke-Clinical RM Ebola Response Consortium. Dr. Wohl’s research aims to optimize the treatment of HIV including the identification of the most effective therapeutic approaches, and minimizing adverse effects of therapy. He also is active in investigations focused on HIV vulnerable populations, such as the incarcerated. He is active within the US AIDS Clinical Trials Group and HIV Prevention Trials Network and served two terms as a member of the US Department of Health and Human Services Antiretroviral Guidelines Panel. As part of the response to the 2013-16 Ebola outbreak in West Africa, Dr. Wohl led UNC clinical research efforts to test interventions for Ebola Virus Disease in Liberia and now directs a clinical cohort of Ebola survivors. In addition to his research and administrative activities, Dr. Wohl maintains a large HIV continuity clinic at UNC.

Stephen Scarborough  (Atlanta, GA)

Stephen R. (Steve) Scarborough is a criminal defense attorney in Atlanta whose practice focuses on appellate and post-conviction matters in state and federal courts. A graduate of Emory University and Yale Law School, he has been a longtime public defender, a staff attorney at the Southern Regional Office of Lambda Legal, and an attorney in private practice representing persons accused in serious felony cases. He is interested in the intersection of the criminal law and public health and has represented several persons who were accused of HIV-related offenses or were subject to enhanced sentences on account of their status. He is part of a community effort to replace Georgia’s outdated, HIV-specific reckless conduct statute, which imposes felony liability in a broad range of cases where transmission of HIV is nearly or totally impossible.

Nigeria: On Zero Discrimination Day, Coalition of Lawyers for Human Rights strongly denounce judicial HIV stigma in ongoing child custody case (Press release)

Breach of HIV status confidentiality and discrimination by the Hon Justice Olagunju of the Oyo State Judiciary 

Federal Capital Territory, Abuja. March 1, 2017.

Coalition of Lawyers for Human Rights, COLaHR, is a Coalition of Human Rights Lawyers working on issues of Persons Living With, Affected By or Most at Risk of HIV.

COLaHR has been following and monitoring a case involving a mother living with HIV, which is being adjudicated upon before the Hon Justice Olagunju of Court 7 of the Oyo State High Court of Justice.

Our interest in the matter is basically to monitor how courts, in the dispensation of justice involving persons living with HIV, respect their confidentiality and possible traces of stigma and discrimination, in accessing justice.

COLaHR is concerned with the attitude of the Honourable Justice on all fronts in this regard. On the 20th of February 2017, while lawyers on both sides were delivering their final addresses, the presiding Judge, publicly made comments which publicly revealed the HIV status of the plaintiff. Not only was this wrong and a gross breach of confidentiality, the Judge also made comments obiter in the case of custody of the child, which exhibited gross stigmatisation and discrimination.

The Judge largely stated as follows:

putting the interest of the child first, imagine the trauma that the little girl will pass through when the news of her mother being HIV-positive spreads across her school.”

The above quote, which was made in passing (obiter) and may not be included in the courts records, is patently discriminatory and coated with stigma. It betrays lack of appreciation of the prevailing HIV and AIDS laws at the federal and state levels. Several questions arise from Justice Olagunju’s statement:

  • What happens if both parents of the child are HIV-positive? Will such a child be handed over to foster parents?
  • Are we saying that persons with HIV in Nigeria are not fit for parenthood?
  • Should all HIV-positive adults therefore be sterilised?
  • Who will spread the news of Omolara being HIV-positive all over her daughter’s school?
  • Is the right to confidentiality of HIV status not guaranteed under Nigerian laws?

COLaHR makes the following findings from our monitoring of this case:

  1. The disposition of Hon. Justice Olagunju clearly casts doubt on the ability of the court not to be swayed by the Plaintiff’s health status in coming to a decision on the matter.
  1. The Plaintiff, in her statements to COLaHR has clearly shown the fear as in above, given her Husband’s request for custody of the child is hinged on HER HIV-POSITIVE STATUS.

It is in light of the above that COLaHR calls on Hon. Justice Olagunju to excuse himself from the case as justice must not only be done, but must be seen to have being done.

We call on the Chief Justice of the State, to direct Hon. Justice Olagunju to step down from the case.

We will in consonance with the law, share our findings with the Federal Attorney General and Minister of Justice and the State Attorney General respectively.

Signed

Roseline Oghenebrume,

National Coordinator, Coalition of Lawyers for Human Rights

Canada: Guidelines on prosecuting HIV non-disclosure in Ontario to be released

The Divisional Court has ordered the Ministry of the Attorney General to release a set of draft guidelines for prosecuting HIV non-disclosure cases.

An assistant Crown attorney developed the guidelines in the unprecedented 2009 case of Johnson Aziga, an HIV-positive man who was convicted of first-degree murder for failing to disclose his status when he had unprotected sex with two women.

The guidelines were shared throughout the province with Crowns involved in HIV prosecutions and uploaded to their intranet, says Toronto lawyer Marcus McCann, who sought the document as part of a larger Freedom of Information request.

The ministry refused to grant McCann’s request, arguing the guidelines were subject to solicitor-client privilege, but the Information and Privacy Commissioner sided with McCann.

“The fundamental unfairness that motivated me was that MAG has been able to avoid disclosure of this document simply by allowing Crowns to use this document created off the side of the desk without adopting it as official policy,” McCann says.

MAG sought judicial review of the privacy commissioner’s decision, but it was recently rejected by the Divisional Court.

The privacy commissioner, and later the Divisional Court, determined that solicitor-client privilege had actually been waived by the assistant Crown attorney who developed the draft guidelines, as they had been shared with a program manager with the Sexual Health and Harm Reduction of the City of Hamilton.

MAG said the document was shared with the official in order to get her “expert input, advice and assistance in relation to legal advice” in the guidelines, and it said that her input was necessary in order to ensure the document was accurate.

MAG also argued that the commissioner erred by failing to consider whether the ministry and the program manager had common interests, which would have preserved solicitor-client privilege. The ministry said the common interest was the reduction of harm and the protection of society, but the Divisional Court sided with the privacy commissioner, who said that interest was too broad and that the two entities have very different practical mandates.

“The Commissioner’s rejection of the common interest was reasonable. The result is justified, transparent and intelligible,” Justice Carolyn Horkins wrote in the Divisional Court decision, Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), which was released on Nov. 15.

It is not clear whether the provincial government plans to appeal the decision, but McCann says that if and once the document is released, it could help those being prosecuted in HIV-related cases understand how Crown prosecutors are approaching these matters.

For years, AIDS services organizations have pushed the provincial government to develop an official set of guidelines for prosecuting HIV non-disclosure cases, but with little progress. Between 1989 and 2013, around 155 people were criminally charged in Canada for not disclosing they had HIV and a majority of these prosecutions occurred in Ontario, according to the Canadian HIV/AIDS Legal Network.

Human rights lawyers say the problem with the lack of official guidelines for these HIV non-disclosure cases is that there is such a wide scope of charges defendants can face, some of which are very serious.

Ryan Peck, the executive director of HIV & AIDS Legal Clinic Ontario, says those prosecuted in these cases often face aggravated sexual assault charges, which are used to prosecute serious forced sex acts.

In 2010, a group called the Ontario Working Group on Criminal Law and HIV Exposure launched a campaign calling on MAG to create a set of prosecutorial guidelines. The ministry agreed to do so, but after years of consultations and delays, an official set of guidelines has not materialized yet.

“The current use of the criminal law is simply out of step with science and human rights,” Peck says. A handful of lawyers, including Peck, on the working group were allowed to review draft guidelines in November 2014. It is unclear whether these are the same draft guidelines McCann requested, as the lawyers who reviewed the guidelines are not permitted to discuss their contents.

The lawyers who viewed the draft guidelines asked that the ministry not issue the guidelines, and MAG complied with that request. The working group plans to meet with Attorney General Yasir Naqvi at a “minister’s roundtable” discussion, which is set to take place Dec. 5.

“They appear to be at loggerheads on the issue of not just should prosecutorial guidelines be drafted but what the content of them should be, and it’s my hope that this document being made public will help break that logjam,” says McCann.

Brendan Crawley, a spokesman for MAG, said it would be inappropriate for the ministry to comment, as the Divisional Court’s decision is still within the appeal period.

Published in Law Times on Nov 28, 2016

BEYOND BLAME
Challenging HIV Criminalisation @ AIDS 2016, Durban

(29 min, HJN, South Africa, 2016)

On 17 July 2016, approximately 150 advocates, activists, researchers, and community leaders met in Durban, South Africa, for Beyond Blame: Challenging HIV Criminalisation – a full-day pre-conference meeting preceding the 21st International AIDS Conference (AIDS 2016) to discuss progress on the global effort to combat the unjust use of the criminal law against people living with HIV.

Attendees at the convening hailed from at least 36 countries on six continents (Africa, Asia, Europe, North America, Oceania, and South America).

Beyond Blame was convened by HIV Justice Worldwide, an initiative made up of global, regional, and national civil society organisations – most of them led by people living with HIV – who are working together to build a worldwide movement to end HIV criminalisation.

The meeting was opened by the Honourable Dr Patrick Herminie, Speaker of Parliament of the Seychelles, and closed by Justice Edwin Cameron, both of whom gave powerful, inspiring speeches. In between the two addresses, moderated panels and more intimate, focused breakout sessions catalysed passionate and illuminating conversations amongst dedicated, knowledgeable advocates

US: National Association of Criminal Defense Lawyers pass resolution opposing all laws that base criminal liability and/or penalty enhancements on one's HIV status rather than on the intent to harm another individual

On May 21, 2016, at the spring meeting of the National Association of Criminal Defense Lawyers (NACDL), the board of directors unanimously adopted a resolution opposing all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual. Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more.

As set forth in NACDL’s resolution, “the focus on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit the virus, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization.”

“Laws such as these are textbook examples of flawed criminal justice policy,” said NACDL President E.G. “Gerry” Morris. “Furthermore, as a public health matter, these laws operate as an impediment to what should be the shared goal here – ending the epidemic. NACDL stands with the HIV/AIDS-affected community and others in unambiguously declaring that HIV is not a crime. It should not be treated as such. Rather than irrationally deploying the criminal law to stigmatize and punish the more than 1.2 million people in the United States living with HIV, we need to work together to advance policies that encourage, rather than deter people from learning of their HIV status and seeking life-saving treatment.”

NACDL’s May 21, 2016 resolution is below.

In addition, audio from a May 5, 2016 teleconference co-sponsored by NACDL, the Center for HIV Law and Policy, and the American Bar Association AIDS Committee – When Sex is a Crime and Spit is a Dangerous Weapon: A Teleconference on HIV Criminal Laws – is available here.

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Concerning HIV Criminalization

Las Vegas, Nevada

May 21, 2016

Introduction

Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more. The focus of these laws on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit HIV, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization. In sum, these laws do not comport with well-established American criminal law principles concerning intent, harm, and proportionality.

The bulk of HIV criminalization laws were enacted prior to the availability of effective antiretroviral therapy for HIV, which not only can extend significantly the lifespan of those with HIV, increasing the probability that a person with HIV never develops AIDS, but also has been shown in studies to dramatically reduce the risk of transmission by those carrying the virus. An obvious prerequisite to securing appropriate treatment is getting tested to determine if one is carrying the HIV virus. Being aware of one’s HIV status is also a necessary, and all too often sufficient, threshold fact making one vulnerable to prosecution under these laws. That, however, creates a powerful disincentive to getting tested for the virus. According to the President’s Advisory Council on AIDS, “Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.”

For additional background information, attached are (i) the President’s Advisory Council on HIV/AIDS (PACHA) Resolution on Ending Federal and State HIV-Specific Criminal Law, Prosecutions, and Civil Commitments (PDF), (ii) the U.S. Department of Justice, Civil Rights Division, Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors (PDF), and (iii) the Positive Justice Project1 Guiding Principles for Eliminating Disease-Specific Criminal Laws (PDF).

Resolution

WHEREAS, there are more than 1.2 million people in the United States living with HIV, and an estimated 156,000 of those people are unaware of their infection, according to the Centers for Disease Control and Prevention (CDC); and

WHEREAS, the United States has led the world in HIV prosecutions; and

WHEREAS, the National Association of Criminal Defense Lawyers (NACDL) has long been concerned with the trend in the criminal law away from the moral anchor of adequate mens rea, or criminal intent, requirements; and

WHEREAS, the focus on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit the virus, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization; and

WHEREAS, punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV; and

WHEREAS, such laws constitute bad public health policy, erecting disincentives to getting tested for HIV when modern and effective antiretroviral therapy for HIV not only can extend significantly the lifespan of those with HIV, increasing the probability that a person with HIV remains healthy and never develops AIDS, but also can dramatically reduce the risk of transmission by those carrying the virus; and

WHEREAS, according to the CDC and the Civil Rights Division of the Department of Justice, “most of these laws do not account for actual scientifically-supported level of risk by type of activities engaged in or risk reduction measures undertaken” and “many of these state laws criminalize behaviors that the CDC regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures”; and

WHEREAS, HIV criminalization was bad criminal justice policy prior to the advent of modern and effective antiretroviral therapy, and remains so today; and

WHEREAS, NACDL’s core mission includes working to ensure justice and due process for persons accused of a crime as well as promoting the proper and fair administration of criminal justice; therefore

BE IT RESOLVED that NACDL hereby opposes all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual. Accordingly, NACDL supports the repeal of such criminal laws as fundamentally unfair and unjust. Recognizing that outright repeal can result in the abusive use of existing statutes, NACDL also supports modernization of these criminal laws to incorporate strong principles of intent and proportional punishment.

Footnote

1 The Positive Justice Project is a national coalition of organizations and individuals working to end HIV criminalization in the United States. It is a project of The Center for HIV Law and Policy, a national legal and policy resource and strategy center working to reduce the impact of HIV on marginalized communities and to secure the human rights of people affected by HIV. Organizational members of the Positive Justice Project Steering Committee include the Center for HIV Law and Policy, the National Alliance of State & Territorial AIDS Directors, the National Black Leadership Commission on AIDS, and the National LGBTQ Task Force.