Watch all the videos of Beyond Blame @HIV2020 – our “perfectly executed…deftly curated, deeply informative” webshow

Earlier this month, advocates from all over the world came together for two hours to discuss the successes and challenges of the global movement to end HIV criminalisation.

All of the recordings of Beyond Blame: Challenging HIV Criminalisation for HIV JUSTICE WORLDWIDE are now available on the HIV Justice Network’s YouTube Channel.

“HUGE pleasure 2B at #BeyondBlame2020 conference – deftly curated, deeply informative; speakers were great; the passion & commitment to #HIVjustice was palpable. Much progress yet a sober reminder that the work is far from over.”

Kene Esom, Policy Specialist: Human Rights, Law and Gender, United Nations Development Programme (UNDP)

 

The full-length director’s cut version – with enhanced audio and video – is now available in English as well as with the audio track of the recorded simultaneous translation in French, Spanish, Russian, and Portuguese.

The English version is also available as a YouTube playlist in ‘bite-size’ chunks, with each segment of the webshow available as standalone videos.  This means, for example, if you just want to watch (or share) the segment on ‘women challenging HIV criminalisation in Africa‘, or on ‘bringing science to justice, and justice to science‘, it’s now possible.

“That webinar was perfectly executed. Great sound, engaging transitions (they actually played people on and off!), and multiple speakers in various collections. Having ALL OF THEM back at the end showed the breadth of this technical accomplishment and the depth of the speakers’ field of expertise. Not everyone may notice these things but boy, I sure do, and it was totally pro. I’ve seen big name conferences who couldn’t get this right… Congratulations all around, and especially to [director] Nicholas Feustel.

Mark S King, My Fabulous Disease

 

We have also made available for the first time the standalone recording of Edwin Cameron’s closing speech, which inspired so many.  The transcript is included in full below.

“We have been being battling this fight for many years. Since the start of the HIV epidemic we as gay men, as gay women, as queers, as transgender people, as sex workers, as people using drugs, have been persecuted by the criminal law. And I’m here to say, “Enough! Enough!

We have achieved a great deal with our movement, with the HIV Justice Network. We have achieved a great deal in conscientizing law makers, law givers and the public. It is now time for us to join in unison to demand the end of these stigmatising, retrograde, unproductive, hurtful, harmful laws.

It is a long struggle we’ve engaged in. And it’s one that has hurt many of us. Some of us here today, some of us listening in, some of us who have spoken, have felt the most brutal brush of the law. They have been imprisoned, unjustly prosecuted, unjustly convicted, and unjustly sent away.

HIV is not a crime. But there is more to it. Criminalising HIV, criminalising the transmission or exposure of HIV, as many countries on my own beautiful continent Africa do, is not just stupid and retrograde. It impedes the most important message of the HIV epidemic now, which is that this epidemic is manageable. I’ve been on antiretroviral treatment now for very nearly 23 years. My viral load has been undetectable for more than 20.

We can beat this, but we have to approach this issue as public health issue. We have to approach it rationally and sensibly, and without stigma, and without targeting people, and without seeking to hurt and marginalise people.We’ve made calamitous mistakes with the misapplication of the criminal law over the last hundred years, in the so-called ‘war on drugs’. We continue to make a calamitous mistake in Africa and elsewhere by misusing the criminal law against queer people like myself. We make a huge mistake by misusing the criminal law against people with HIV.

Let us rise today and say, “Enough!”

 

South Africa: Former Constitutional Court Judge Edwin Cameron talks about his life, HIV and the Law

Judge Edwin Cameron on HIV, justice and attacks on the judiciary

Former Constitutional Court Judge Edwin Cameron, whether intentionally or not, has always been an activist. He talks to Manosa Nthunya about his writing life.

In South Africa, we are increasingly becoming accustomed to the fact that from time to time a judge, particularly from the Constitutional Court, will, to our delight, pen a book.

Since our transition into democracy, some of the judges who have written books, mostly memoirs, include Albie Sachs, Dikgang Moseneke and Edwin Cameron.

All their books are reflections on the law and its role in our nascent democracy.

Because of our history, these memoirs are reflections of the role the law has played in the individual lives of these judges growing up under apartheid.

It is in this way that for us as readers the law comes alive, as it is presented as not only an abstract entity but something that always has a profound effect on lives.

Judge Cameron, who retired from his position as Constitutional Court justice last year, has written two personal memoirs which have both received acclaim.

His first memoir, Witness to Aids, was published in 2005 and his second, Justice: A Personal Account, in 2014.

Both books chronicle his life, beginning under apartheid and into post-apartheid, and interrogate what the law means in the context of a society where it was used to catastrophic ends.

When I met Cameron to discuss his writing life, I was most interested in what it was that compelled him to write, particularly because there seems to be an expectation in our society that the less it is known about a judges’ life and thinking, the better we can trust in the independence and fairness of their judgments.

When I ask him why it is that he writes, he responds that with his first book his reasons were to “make a point about white privilege, about homosexuality and about HIV”.

With his second book, “my aim was to show the law as an oppressor, as the imprisoner of my father, as something that should be applied to social justice ends”.

Witness to Aids is a book, as the title suggests, that looks at the impact that HIV/Aids has had in South Africa.

It’s a book that tells the story of the disease from a deeply personal perspective.

INFECTED WITH THE VIRUS

Cameron writes in the introduction: “I knew that I had Aids when I could no longer climb the stairs from the judges’ common room in the high court to my chambers, two floors above.”

He goes on to tell his story of being infected with HIV and how that dramatically changed his life.

Having been infected with the virus during the heady days of apartheid, Cameron’s book explores the shame that was – and still is – attached to the virus and how this was exacerbated by his sexuality.

This is an experience, he tells me, that has greatly shaped him.

Even though Cameron’s career as a lawyer and eventually a judge was taking off, he writes that having HIV was a huge blow to how he thought his life would turn out as “the other part of my life was washing away beneath my feet, eroded by microbes and attacked by fungi coursing through my veins and wasting my muscles and bodily reserves, leaving me tired and panicked and isolated in the waiting room”.

Having heard people say that they would kill themselves if they found out they were HIV-positive, he found that he “wanted to keep on living. I wanted my health back, urgently. I wanted to breathe easily, freely, again.”

While Witness to Aids is about Cameron’s battle with the disease, it is also a story about the tragic politics of HIV/Aids in South Africa.

He tells me that this was a very difficult book for him to write: “The first book was agony. Every word was anguish. Writing about stigma, infection, recovering from it.

“Writing about the horror of [former president] Thabo Mbeki’s denialism was very painful. I was under attack by a man named Ronald Suresh Roberts, who should remain nameless.”

And the book does – more so than any popular book I can think of – go into detail about the consequences of Aids denialism in South Africa. What created this, he writes in the book, was “the inauguration of Mbeki’s Aids Advisory Panel in 2000”, which “initiated three years of tragic confusion in South African governmental approaches to Aids”.

This is partly why Cameron became an activist for issues related to HIV/Aids.

Rereading the book now, one realises how far we have come as a country with regard to the disease and the despair that was ever-present at that time.

Some of the most moving words that speak to this despair are when Cameron writes: “We cannot allow our grief and our bereavement to inflict a further loss upon us – the loss of our own full humanity, our capacity to feel and respond and support. We must incorporate our grief into our everyday living by turning it into energy for living, by exerting ourselves as never before.”

What made it possible to challenge government was a ruling by the Constitutional Court that the state was compelled to offer antiretrovirals.

In many ways, the story of HIV/Aids in South Africa is a story which, although tragic, bears witness to the importance and strength of living in a constitutional democracy.

It is testament to what is possible when a country has an independent judiciary and a government that respects the judgments of the courts – as was the case, as Cameron writes, under Mbeki’s presidency.

It is in Cameron’s second book that the importance of a constitutional democracy is interrogated more deeply.

In the context of South Africa this is not an easy examination, as the courts have more often than some would wish come under heavy criticism from politicians and, of late, the public through social media.

Cameron writes that the book is about “our country’s most inspiring and hopeful feature – its big-spirited, visionary Constitution. And it tells the story of my journey from poverty-stricken childhood to becoming a lawyer and eventually a justice in the country’s highest court, which has the duty to interpret and guard that Constitution.”

I put it to him that what struck me while rereading his book was how he seemed to have written a biography of the law.

The ways in which the law, like a human being, is under constant change and how in that consistent metamorphosis it can be perceived as either nefarious or necessary.

Thus, even though the story of apartheid that he tells in the book is one about the tragic uses of the law, there is also a sense that the law is not something stable and fixed, that it depends on who is making use of it.

In the book he writes: “What fascinated me was that the law, apartheid’s oppressive instrument, could also be employed against apartheid. It could be used occasionally to mitigate its effects. Properly employed, it could be used to repair and not to break down or damage.”

What Cameron provides here is a picture of the law that is very much with us in post-apartheid South Africa.

Even though the sense, for most, is that the law should be used to respond adequately to our history, there are also those who are intent on abusing it to further their ambitions.

What this reveals to us as the public is that the law is, in fact, a fragile entity, solely reliant on the motives of those who are in control of it.

In Justice: A Personal Account, we are taken into Cameron’s childhood in an orphanage and how he became interested in law.

Even though he grew up poor in apartheid South Africa, he was nevertheless acutely aware of the fact that being white meant that he had privileges which other racial groups could not have.

“My whiteness bought me the privileges that apartheid was designed to secure for whites. It secured for me access to a first-rate high school and an excellent university. These opened the way for me to get a Rhodes Scholarship to Oxford, and to start my legal career,” Cameron writes.

It is precisely these privileges which he believes South Africa’s democratic Constitution is called on to address, about which he writes: “Our Constitution seeks to offer this generosity and support justly to all. It gives us a framework for a society in which mutual support and generosity are key. And it obliges government, on behalf of all of us, to create a society in which all of us can live in dignity.”

ATTACKS ON THE JUDICIARY

I find it unavoidable to ask him about his reflections on the latest, as we are told, “attacks” the judiciary.

What does he make of them and are they justified?

He responds saying that precisely because South Africa’s transition was legal-centric, it is unavoidable that the judiciary will, from time to time, receive criticism.

At the time he wrote his second book, he says, “the Constitution was under credible and warranted scrutiny”.

What he was saying in the book was that, despite the criticisms the Constitution has received, it has survived, revealing its strength.

Recently, “the particular criticism has come from the EFF, when they got a number of judgments which were adverse to them and [Mbuyiseni] Ndlozi made personal comments about the judge and he referred to the two judges’ genders”, something which Cameron says he found worrying. This was a consequence of a judgment that involved Public Protector Busisiwe Mkhwebane, where the majority of judges found that she had been dishonest and legally incompetent.

Cameron tells me that, despite the fact that the Constitution has shown its resilience, there was a time in our recent history when our democracy was under threat.

He says it was with the help of the Chief Justice Mogoeng Mogoeng and former Public Protector Thuli Madonsela that we survived.

“If I had to nominate two people that have saved our democracy I would nominate Mogoeng and Madonsela. They have played pivotal roles in salvaging democracy from total ruin.”

I ask what advice he would give to young authors, be it in law or otherwise.

“It starts with a message. In Witness to Aids I was trying to talk about how HIV is a manageable but highly stigmatised disease. In Justice: A Personal Account it was [about] a Constitution under threat. For me it starts with a message and the rest flows from that.”

And when I ask what it is that keeps him going, Cameron says: “The young law students are the reason to keep going. Outstanding young South Africans who have a sense of vision about what the law can do and about how the courts should operate. It’s the reason to keep going and not to fall into some kind of pessimism or despair.”

Nthunya is a PhD candidate in literature at Wits University. He studied literature, history and philosophy at Rhodes University

South Africa: Constitutional Court Justice Edwin Cameron, a leading figure on HIV and the law, to retire in August

Justice Edwin Cameron to step down in August after 25 years as a judge

Justice Edwin Cameron is expected to retire as a judge on August 20, the Constitutional Court announced on Twitter on Thursday.

Cameron is expected to step down from the apex court on the 25th anniversary of his appointment as a judge.

Cameron, who worked as a human rights lawyer during apartheid, defended ANC members and fought for gay and lesbian equality, according to his profile on the Constitutional Court’s website.

He revealed that he was HIV positive in 1999, at a time when many people living with the virus faced significant stigma from a deeply ignorant public. He contracted the virus in the late 1980s.

In 2017, he told the Constitutional Hill website: “The stigma is still enormous. It would be helpful if we had more [prominent people open about being HIV positive], but each has to take that decision personally.”

Cameron, a keen cyclist, was appointed to the Constitutional Court in 2008 by then acting president Kgalema Motlanthe.

The announcement about him stepping down has been met with sadness. There were also expressions of admiration for what he accomplished over the years.

Livestream: Beyond Blame – Challenging HIV Criminalisation: Plenary 2 (HJN, 2018)

Welcome to BEYOND BLAME – Challenging HIV Criminalisation, live from De Balie in Amsterdam, 23 July 2018.

11:2012:10 What About Human Rights? The Benefits and Pitfalls of Using Science in Our Advocacy to End HIV Criminalisation Facilitator: Laurel Sprague (UNAIDS) With: Chris Beyrer (John Hopkins Bloomberg School of Public Health), Edwin Cameron (Constitutional Court of South Africa), Richard Elliott (Canadian HIV/AIDS Legal Network), Lynette Mabote (ARASA), Paula Munderi (IAPAC)

12:1013:00 Women and HIV Criminalisation: Feminist Perspectives Facilitator: Naina Khanna (Positive Women’s Network – USA) With: Sarai Chisala-Tempelhoff (Women’s Lawyers Association, Malawi), Michaela Clayton (ARASA), Kristin Dunn (AIDS Saskatoon), Deon Haywood (Women With A Vision)

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.

 

South Africa: Regional judges meet to discuss the use of law as a tool to respond to the HIV epidemic in Africa

Regional judges meet to promote law as a tool to strengthen the HIV response in Africa

High and Supreme Court judges from across Africa gathered in Johannesburg, South Africa this week for an annual forum to share experiences, compare cases across different jurisdictions, learn about the latest medical and science developments, and discuss ways to advance the use of law as a tool to respond to the HIV epidemic.

The three-day Africa Regional Judges Forum on HIV, Human Rights and the Law was attended by nearly 50 participants, including 30 judges from 16 countries, and was organized by the United Nations Development Programme (UNDP) through the Africa Regional Grant on HIV: Removing Legal Barriers.

The forum was established by a group of judges in 2014 following the release of the report of the Global Commission on HIV and the Law, an independent body convened by UNDP which examined links between legal environments and HIV responses. The annual meetings are owned and planned by the judges themselves.

“Through their interpretation of national Constitutions, legislation, international and regional human rights treaties, the judiciary play a crucial role in establishing and implementing laws, policies and practices that can aid the HIV response,” said Justice Key Dingake who opened the forum with a keynote speech. “This annual forum has proven to be a useful mechanism for facilitating experience and knowledge sharing amongst the legal community, and it is hoped that these efforts will translate into a positive impact on the lives of people affected by HIV, who are often among the most vulnerable in society.”

Discussions during this year’s meeting focused on transgender persons and their lived realities, HIV and tuberculosis in prisons, criminalization of HIV transmission, people who use drugs, and adolescent sexual and reproductive health and rights, including an in-depth discussion on child marriage in Sub-Saharan Africa.

Relevant cases were shared with participants. A landmark judgement in Malawi concerning overly broad criminalization of HIV non-disclosure, exposure and transmission was discussed in detail. The case concerns a woman living with HIV and on antiretroviral treatment who was convicted of a crime under section 192 of the Penal Code for breastfeeding another person’s child. The child did not contract HIV and the evidence indicated that the breastfeeding was accidental and unintended. With the support of the Southern Africa Litigation Centre, UNDP and a team of local lawyers and activists, the conviction was overturned in January 2017 as part of strategic litigation efforts. Key actors involved in the case, including the judge and defense lawyer, attended the session and shared insights of the case with participants.

“One of the key issues in the case was how HIV can be transmitted and the risk of HIV transmission when breastfeeding,” said Justice Zione Ntaba. “I was able to use the information from previous meetings of the Judges Forum as well as material on the database to assist me in determining whether breastfeeding a baby put the baby at significant risk of contracting HIV.”

Another session during the forum focused on tuberculosis in prisons. Katherine Brittin from TB/HIV Care Association discussed how tuberculosis is transmitted in prison and the risk factors for transmission, including overcrowding in prisons. She called on the judges to take these factors into account when sentencing individuals, especially given the overcrowding of prisons in many countries in Africa.

A key aim of the forum is to give opportunities for the judiciary to hear directly from representatives of civil society and affected population groups on the impact of laws, policies and practices. Real world lived experiences were presented by a transgender doctor, a transgender man from Asia-Pacific, a man who acquired TB while in prison, two women who were forced into marriage as children, and a person who uses drugs and is currently on methadone treatment.

In some parts of the region, cultural norms such as child marriage are having harmful effects on the HIV response. Participants from Zimbabwe shared the difficulties that they encountered in mounting a legal challenge for child marriage in the country. In 2016, civil society and the Southern African Development Community-Parliamentary Forum collaborated to develop a Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage which was intended to prompt policy reforms in Member States. While the initiative is still in its infancy, participants expressed hope that it will be a catalyst for change.

“Laws that are based on evidence and human rights have the power to make a positive impact on the HIV response,” said Amitrajit Saha, Senior Advisor HIV and Human Rights, UNDP. “UNDP works to empower and marginalized key populations, including women and girls, in national and local HIV responses can strengthen the response. This also contributes to fulfilling the Sustainable Development Goals pledge to ‘leave no one behind’.”

UNDP has developed an online searchable database of HIV and the law related judgements, which was shared with participants. The database is continually growing in size and has proven to be a useful tool for judges over the last two years that it has been in operation. The database can be accessed online here.

One highlight of this year’s gathering was the creation of a Steering Committee comprised of five judges from the forum. Justice Dingake will serve as the President of the Steering Committee; Judge Zukisa Tshiqi of the Supreme Court of Appeal of South Africa will serve as the Vice President. The other three members of the Steering Committee are Judge Mumcy Dlamini of the High Court of Swaziland, Judge Ndomba Kabeya Elie Leon from the Democratic Republic of the Congo and Judge Anthony Fernando of the Seychelles Court of Appeal. The Steering Committee will set the strategic direction of the forum, initially adopt a draft plan of action for the next six months and work with UNDP and other partners to implement the plan. Preliminary discussions were also held on expanding the forum to cover countries from the Middle East and Eastern Europe regions.

Additionally, the forum dedicated a session to planning for the upcoming Second Africa Regional Dialogue on HIV and the Law scheduled to take place 3-4 August in Johannesburg, and discussed the importance of including judges in this significant event.

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

Australia: Australian experts publish statement urging courts to consider current scientific evidence in criminal cases involving alleged HIV transmission or exposure

A group of leading HIV experts are calling for “caution to be exercised” when considering criminal charges against people who recklessly spread the disease.

In a consensus statement published in the Medical Journal of Australia, Australian researchers and scientists — including Professor Sharon Lewin and Professor Andrew Grulich — argue that “criminal cases involving HIV transmission or exposure require that courts correctly comprehend the rapidly evolving science of HIV transmission and the impact of an HIV diagnosis”.

The statement cites scientific evidence that shows the risk of HIV transmission to be negligible if a person is on treatment and has an undetectable viral load. It also claims that HIV isn’t as serious a condition as it used to be: “Most people with HIV are able to commence simple treatment providing them a normal and healthy life expectancy, largely comparable with their HIV-negative peers.”

“Given the limited risk of HIV transmission per sexual act and the limited long-term harms experienced by most people recently diagnosed with HIV, appropriate care should be taken before prosecutions are pursued,” says the statement.

While acknowledging that cases of deliberate transmission of HIV are “extremely unusual”, the group urge authorities to change behaviours through counselling rather than the courts.

“Careful attention should be paid to the best scientific evidence on HIV risk and harms, with consideration given to alternatives to prosecution, including public health management.”

The statement has been welcome by HIV advocacy groups.

“It’s incredible to see these experts come together and make a bold statement regarding HIV and the law,” said Richard Keane, President of Living Positive Victoria.

“The impact of HIV criminalisation or even the threat of it is a dangerous form of stigma and we’re still feeling the ripple effect more than two decades later.”

There have been at least 38 Australian criminal prosecutions for HIV sexual transmission or exposure since 1991.

“You don’t have to be convicted or even prosecuted for HIV criminalisation to affect you,” said Keane.

“The HIV community lives with the threat that a complaint can be made against us and the stigma that criminal prosecutions amplify and perpetuate.”

Keane hoped the statement’s focus on utilising the public health system rather the criminal courts in dealing with behaviour change would lead to better outcomes on policy.

“Most people on treatment are able to achieve an ‘undetectable’ viral load which makes it highly likely that the person will remain healthy and pose a negligible risk of transmitting HIV,” Keane said.

“The evidence outlined in this statement shows that the per-act risk of HIV transmission from even the most risky sex is still low. The message should be to encourage individuals to take care of their health and eliminate barriers to accessing treatment rather than intimidation through the justice system.

“By focusing on what the studies and science is telling us about treatments, relative risk and harm, that’s how we reduce HIV transmission whilst protecting the rights and dignity of people living with HIV. HIV is a health issue, not a criminal justice issue.”

Additional reporting Positive Living.

Published in Gay News Network on Nov 6, 2016

Video and written reports for
Beyond Blame: Challenging HIV Criminalisation at AIDS 2016
now available

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.

WATCH THE VIDEO OF THE MEETING BELOW

A tremendous energising force at the meeting was the presence, voices, and stories of individuals who have experienced HIV criminalisation first-hand. “[They are the] folks who are at the frontlines and are really the heart of this movement,” said Naina Khanna, Executive Director of PWN-USA, from her position as moderator of the panel of HIV criminalisation survivors; “and who I think our work should be most accountable to, and who we should be led by.”

Three survivors – Kerry Thomas and Lieutenant Colonel Ken Pinkela, from the United States; and Rosemary Namubiru, of Uganda – recounted their harrowing experiences during the morning session.

Thomas joined the gathering via phone, giving his remarks from behind the walls of the Idaho prison where he is serving two consecutive 15-year sentences for having consensual sex, with condoms and an undetectable viral load, with a female partner.

Namubiru, a nurse for more than 30 years, was arrested, jailed, called a monster and a killer in an egregious media circus in her country, following unfounded allegations that she exposed a young patient to HIV as the result of a needlestick injury.

Lt. Col. Pinkela’s decades of service in the United States Army have effectively been erased after his prosecution in a case in which there was “no means likely whatsoever to expose a person to any disease, [and definitely not] HIV.”

Click here to download the 43 page report (PDF)

At the end of the brief question-and-answer period following the often-times emotional panel, Lilian Mworeko of ICW East Africa, in Uganda, took to the microphone with distress in her voice that echoed what most people in the room were likely feeling.

“We are being so polite. I wish we could carry what we are saying here [into] the plenary session of the main conference.”

With that, a call was put to the floor that would reverberate throughout the day, and carry through the week of advocacy and action in Durban.


 

This excerpt is from the opening of our newly published report, Challenging HIV Criminalisation at the 21st International AIDS Conference, Durban, South Africa, July 2016, written by the meeting’s lead rapporteur, Olivia G Ford, and published by the HIV Justice Worldwide partners.

The report presents an overview of key highlights and takeaways from the convening grouped by the following recurring themes:

  • Key Strategies
  • Advocacy Tools
  • Partnerships and Collaborations
  • Adopting an Intersectional Approach
  • Avoiding Pitfalls and Unintended Consequences

Supplemental Materials include transcripts of the opening and closing addresses; summaries of relevant sessions at the main conference, AIDS 2016;  complete data from the post-meeting evaluation survey; and the full day’s agenda.

Beyond Blame: Challenging HIV Criminalisation at AIDS 2016 by HIV Justice Network on Scribd

AIDS 2016: Justice Edwin Cameron addresses delegates at Durban AIDS conference

I owe my life to you, says judge

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“The fact that I am here today at all is a tribute to the activists, researchers, doctors and scientists in the audience,” Judge Edwin Cameron told delegates to the Durban Aids conference, delivering the Jonathan Mann memorial address. He asked sex workers and transgender people to join him on stage. His godson Andy Morobi also addressed the conference.

It is a great privilege and an honour to be here. At the start of a very busy conference, with many stresses and demands and anguishes, I want to start by asking us to pause quietly for just a few moments.

It has been 35 years since the Western world was alerted to Aids. The first cases of a baffling, new, terrifying, unknown syndrome were first reported in the northern summer of 1981. The reports were carried in the morbidity and mortality weekly reports of the CDC on 5 June 1981.1

These last 35 years, since then, have been long. For many of us, it has been an arduous and often dismaying journey.

Since this first report, 35 million people have died of Aids illnesses2 – in 2015 alone, 1.1 million people. 3

We have felt the burden of this terrible disease in our bodies, on our minds, on our friends and colleagues, on our loved ones and our communities.

Aids exposes us in all our terrible human vulnerability. It brings to the fore our fears and prejudices. It takes its toll on our bodily organs and our muscles and our flesh. It has exacted its terrible toll on our young people and parents and brothers and sisters and neighbours.

So let us pause, first, in remembrance of those who have died –

  • those for whom treatment didn’t come in time
  • those for whom treatment wasn’t available, or accessible
  • those denied treatment by our own failings as planners and thinkers and doers and leaders
  • those whom the internal nightmare of shame and stigma put beyond reach of intervention and help.
  • These years have demanded of us a long and anguished and grief-stricken journey.
  • But it has also been a journey of light – a journey of technological, scientific, organisational and activist triumph.

So we must pause, second, to celebrate the triumphs of medicine, science, activism, health care professional dedication and infrastructure that have brought ARVs to so many millions.

Indeed, the fact that I am here today at all is a tribute to the activists, researchers, doctors and scientists in the audience.

Many of you were responsible for the breakthroughs that led to the combination anti-retroviral treatment that I was privileged to start in 1997 – and which has kept me alive for the last 19 years.

I claim no credit and seek no praise for surviving. It felt like an unavoidable task.

All of us here today who are taking ARVs – let us raise our hearts and humble our heads in acknowledgement of our privilege – and often plain luck – in getting treatment on time. That treatment has given us life.

So let us pause, third, to honour the doctors – the scientists – the researchers – the wise physicians and strong counsellors who have saved lives and healed populations in this epidemic.

As important, fourth, let us pause to honour the activists, whose work made treatment available to those who would not otherwise have received it.

We pause to honour the part, in treatment availability and accessibility, of angry, principled and determined activists, in South Africa’s Treatment Action Campaign and elsewhere. For millions of poor people, their anger brought the gift of life.

Without their courage, strategic skill and passion, medication would have remained unimaginably expensive, out of reach to most people with HIV. They led a successful campaign that saved millions of lives.

The fact that many millions of people across the world are, like me, receiving ARV treatment, is a credit to their work.

They taught us an important lesson. Solidarity and support are not enough. Knowledge and insight are not enough. To save lives, we need more. We need action – enraged, committed, principled, strategically ingenious action.

They refused to acquiesce in a howling moral outrage. This was the notion that life-saving treatment – treatment that was available, and that could be cheaply manufactured – would not given to poor people, most of them black, because of laws protecting intellectual property and patent-holders’ profits.

The Treatment Action Campaign and their world-wide allies frontally tackled this. They changed the way we think about healthcare and essential medicines access.

What is more, without the Treatment Action Campaign, President Mbeki’s nightmare flirtation with Aids denialism between 1999 and 2004 would never have been defeated.

Instead, the TAC took to the streets in protest. They demanded treatment for all. And when President Mbeki proved obdurate, they took to the courts.

Because of my country’s beautiful Constitution, they won an important victory. Government was ordered to start making ARV treatment publicly available.

Today my country has the world’s largest publicly provided anti-retroviral treatment program.4 More than 3.1 million people, like me, are receiving ARVs from the public sector.5

I am particularly proud that when someone with HIV registers for treatment in South Africa, they should not be asked to show an identity document or a passport or citizenship papers. That is as it should be. The imperatives and ethics of public health know no artificial boundaries.

In the sad history of this epidemic, the triumphs of Aids activists, on five continents, are a light-point of joy.

So there is much to celebrate. I celebrate the joy of life every day with the medication – which keeps a deadly virus effectively suppressed in my arteries and veins, enabling me to live a life of vigour and action and joy.

But we must not forget that Aids continues to inflict a staggering cost on this continent and on our world.

What is more important than my survival, and that of many millions of people in Africa and elsewhere on successful ARV treatment, is those who are not yet receiving it.

There still remains so much that should be done. More importantly, there still remains so much that can be done.

Too many people are still denied access to ARVs. In South Africa, despite our many successes, well over six million people are living with HIV. And, though about half of South Africans with HIV are still not on ARVs,6 from September this year ARVs will be provided to all with HIV, regardless of CD4 count.

Globally, of the 36.7 million people living with HIV at the end of 2015, fewer than half had access to ARVs.7

Worse, the pattern of ARV availability is one that reflects our own weaknesses and vices as humans – our prejudices and hatreds and fears, our selfish claiming for ourselves what we do not grant to others.

Most of those still in need of ARVs are poor, marginalised and stigmatised – stigmatised by poverty, sexual orientation, gender identity, by the work they do, by their drug-taking and by being in prison.

Dr Jonathan Mann, to whom this lecture is dedicated, did pioneer work in recognising the links between health and human rights. He stressed that to address Aids, “we must confront those particular forms of inequity and injustice – unfairness, discrimination – not in the abstract, but in its specific and concrete manifestations which fuel the spread of Aids.”8

He recognised that the perils of HIV are enormously increased by laws that specifically criminalise transmission of HIV and exposure of another to it. This was also confirmed by the wonderful and authoritative work the Global Commission on HIV and the Law has recently done.

​These laws are vicious, ill-considered, often over-broad and intolerably vague. By criminalising undefined “exposure”,9 they ignore the science of Aids, which shows how difficult HIV is to transmit.10 Apart from driving those at risk of HIV away from testing and treatment, they enormously increase the stigma that surrounds HIV and Aids.

Across this beautiful continent of Africa, men who have sex with men (MSMs) remain chronically under-served. They lack programs in awareness, education, outreach, condom provision and access to ARVs. As a recent study by Professor Chris Beyrer and others has shown, we have the means to end HIV infections and Aids deaths amongst men having sex with men. Yet “the world is still failing”.11

For this, there is one reason only – ignorance, prejudice, hatred and fear. Theworld has not yet accepted diversity in gender identity and sexual orientation asa natural and joyful fact of being human.

Seventy eight countries in the world continue to criminalise same-sex sexual conduct. Thirty four of them are on this wide and wonderful continent of Africa.

It is a shameful state of affairs. As a proudly gay man I have experienced the sting of ostracism, of ignorance and hatred. But I have also experienced the power of redeeming love and acceptance and inclusiveness.

We do not ask for tolerance, or even acceptance. We claim what is rightfully ours. That is our right to be ourselves, in dignity and equality with other humans.

Discrimination on the ground of sexual orientation or gender identity is a colossal and grievous waste of time and social energy.

As our beautiful Archbishop Desmond Tutu has said, when we face so many devastating problems – poverty, drought, disease, corruption, malgovernance, war and conflict – it is absurd that we waste so much time and energy on sexual orientation (“what I do in bed with whom”.)12

The sooner we accept the natural fact that gender and orientation diversity exists naturally between us, the quicker we can join together our powers of humanity to create better societies together.

The same applies to sex workers. Sex workers are perhaps the most reviled group in human history – indispensable to a portion of mostly heterosexual males in any society, but despised, marginalised, persecuted, beaten up and imprisoned.

Sex workers work.13 Their work is work with dignity.

Why do people do sex work? Well, ask a sex worker –

  • To buy groceries, and pay their rent, to study, to send their children to school, and to send money to their parents and extended family.
  • It is hard work. Perilous work. Sex workers have a tough, dangerous job. They deserve our love and respect and support – not our contempt and condemnation.

They deserve police protection, not exploitation and assault and humiliation.

More importantly, they deserve access to every bit of HIV knowledge and power that can protect them from infection and can help them to protect others from infection. 14

Pre-exposure prophylaxis (PrEP) works for sex workers.15 It should be made available to them, as a matter of urgent priority, as part of all national Aids treatment programs.

In September 2015, the World Health Organization, recognizing PrEP’s efficacy, recommended that PreP be provided to all “people at a substantial risk of HIV,” including sex workers. 16

When we in South Africa launched our three-year National Sex Worker HIV Plan in March 2016, we proposed providing PrEP to sex workers. WHO recognized South Africa as the “first country in Africa to translate this recommendation into national policy.”17

Beginning last month (June 2016), the first programs began providing daily PrEP to sex workers in South Africa.18

Criminalising sex workers is a profound evil and a distraction from the important work of building a humane society.19

Especially vulnerable too are injecting drug users. Upon them are visited the vicious consequences of perhaps the most colossal public policy mistake of the last 80 years – the war on drugs.

The vulnerability of injecting drug users is evident in the high percentage of injecting drug users with HIV. Throughout the world, of about 13 million injecting drug users, 1.7 million (13%) are living with HIV. 20

They are denied elementary life-saving services. This is not on the supposedly “dark” continent of Africa – but in the United States of America. If you want an example of evidence-ignoring public policy, that causes loss of life and injury, and spread of HIV, do not look complacently to President Mbeki’s South Africa twelve years ago – look to the United States of America, now, and the federal government’s refusal to make needle substitution available to IDUs . While the US government’s decision to partially lift this ban on federal funding for needle exchange programs earlier this year is a welcome development, this decision was only spurred by an outbreak of new HIV cases among drug users in the United States, 21 and the delay has undoubtedly resulted in preventable HIV infections. 22

Injecting drug users living with HIV are further denied access to treatment. And the United States and Canada, healthcare providers are less likely to prescribe ARVs for injecting drug users, because they assume that IDUs are less likely to adhere to treatment and/or will not respond to it. This is in spite of research showing similar responses and survival rates for those who do have access to ARVs. 23

We know exactly what we have to do to tame this epidemic.

We have to empower young people and especially young girls, to make health seeking choices when thinking about sex and when engaging in it. 24

We have to redouble our prevention and education efforts.

Prevention remains a key necessity in all our strategies about Aids.

Second, we have to test, test, test, test, test, test and test. We cannot promote consensual testing enough. Testing is the gateway to knowledge, power, understanding and action.

Without testing there can be no access to treatment. The more we test, the more we know and the more we can do.

Testing must always be with the consent of the person tested. But we have to be careful that we do not impose unnecessarily burdensome requirements for HIV testing.

HIV is now a fully medically manageable disease. Consent to testing should be capable of being implied and inferred. We must remove barriers to self-testing.

I speak of this with passion – because, by making it more difficult for health care workers to test, we increase the stigma and the fear surrounding HIV.

We must make it easier to test, not harder. Gone are the terrible days when testing was a gateway only to discrimination, loss of benefits and ostracism.

In all this, we must be attentive to the big understated, underexplored, under-researched issue in the epidemic. That is the effect of the internalisation of stigma within the minds of those who have HIV and who are at risk of it.

Internalised stigma has its source in outside ignorance, hatred, prejudice and fear.

But these very qualities are imported into the mind of many of us with HIV and at risk of it.

Located deeply within the self, self-blame, self-stigma and self-paralysing fear are all too often deadly. 25

We must recognise internalised stigma. I experienced its frightening, deadening effects in my own life. Millions still experience it. We must talk about it. And we must find practical ways to reduce its colossally harmful effects.

And, most of all, we must fix our societies. As my friend and comrade, Mark Heywood, has recently written, we have medically tamed Aids. But we have not tamed the social and political determinants of HIV, particularly the overlapping inequalities on which it thrives – gender, education, access to health care, access to justice. That is why prevention strategies are not succeeding.

A better response to HIV, Mark rightly says, needs a better world. Governments must deliver on their human rights obligations. Activists and scientists must join struggles for meaningful democracy, gender equality and social justice. Activists must insist on equal quality education, health and social services; investment in girls and plans backed by money to stem chronic hunger and malnutrition.26

But, to end, I want to return to the light points in our struggle against the effects of this disease over the last 30 years.

I want to end with a thrilling fact – this is that, unexpectedly, joyously, beyond our wildest dreams, perinatal and paediatric ARVs have proved spectacularly and brilliantly successful.

First, let us rejoice that perinatal transmission of HIV can be completely eliminated. It was about this that the Treatment Action Campaign fought President Mbeki’s government all the way to the Constitutional Court, the Court in which I am now privileged to sit.

Now we know how effectively we can protect babies at birth and before birth from infection with HIV.

In South Africa, the rate of mother-to-child transmission of HIV is now reduced to 4%.27 Worldwide, in 2015, 77% of all pregnant women received treatment to prevent perinatal transmission of HIV.28

Last year, Cuba became the first country to eliminate mother to child transmission of HIV entirely. 29 In 2016, Thailand, Belarus, and Armenia have also reached this milestone. 30

More even, fifteen years ago we didn’t know how well babies and toddlers would tolerate ARVs.

We didn’t know just a decade ago how young children born with HIV would thrive on ARVs.

And would they take their ARVS? Would they grow to normalcy?

Instead of this uncertainty, we now know, triumphantly, that ARVs work wonderfully for children born with HIV.

I want to rejoice in the beauty and vigour of my godson Andy Morobi. Andy and I became family twelve years ago, at the end of 2004.

He is young, energetic, ambitious and enormously talented. He was born with HIV. He has been on ARVs for the last eight years. Like me, he owes his life to the medical and social miracle of anti-retroviral treatment.

I want to end on another light point. I want to honour the treatment activists from Africa, Europe, North America, South America, Australasia and Asia, who fought for justice in this epidemic.

I want to honour them, like Dr Jonathan Mann, to whom this lecture is dedicated. Like my mentor, Justice Michael Kirby of Australia, for their energy and courage and determination and sheer resourceful and resilience in fighting for justice in this epidemic.31

And I want to end by celebrating the fact that we have sex workers here this morning. They are wearing the T-shirts in the slide a few minutes ago. The T-shirts say: “THIS IS WHAT A SEX WORKER LOOKS LIKE”.

And, most of all, as a gay white man who has lived a life privileged by my race and my profession and my maleness, I ask that we celebrate the astonishing courage of transgender activists, of lesbians and gay men across the continent of Africa and in the Caribbean.

They are claiming their true selves. They do so often at the daily risk of violence, attack, arrest and imprisonment.

They have the right to be their beautiful selves. They are claiming a right to be full citizens of Africa, the Islands and the world. They have done so at extraordinary risk.

They know that they cannot live otherwise.

It is to these brave people that this conference should be dedicated: to the sex workers, injecting drug users, migrants, lesbian, gays and transgendered people, the children, the activists, those in prison, the poor and the vulnerable.

It lies within our means to do everything that will ensure whole lives and whole bodies for everyone with HIV and at risk of it.

All it requires is a passion and a commitment and a courage starting within ourselves. Starting within each of ourselves. Starting now.

Thank you very much.

For footnotes please see original articles in GroundUp