Canada: New directive to limit unjust prosecutions against people living with HIV to be issued by Attorney General of Canada

OTTAWA, Dec. 1, 2018 /CNW/ – The Government of Canada is committed to a fair, responsive and effective criminal justice system that protects Canadians, holds offenders to account, supports vulnerable people, and respects the Canadian Charter of Rights and Freedoms. Today, on the 30th anniversary of World AIDS Day, the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, announced that she will issue a directive related to the prosecution of HIV non-disclosure cases under the federal jurisdiction of the Public Prosecution Service of Canada.

In issuing the Directive, the Government of Canada recognizes the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.

This Directive is a real step toward ensuring an appropriate and evidence-based criminal justice system response to cases of HIV non-disclosure. In so doing, it will harmonize federal prosecutorial practices with the scientific evidence on risks of sexual transmission of HIV while recognizing that non-disclosure of HIV is first and foremost a public health matter.

On December 1, 2016, Minister Wilson-Raybould committed to working with her provincial and territorial counterparts, affected communities, and medical professionals to examine the criminal justice system’s response to non-disclosure of HIV status. A year later, on December 1, 2017, the Department of Justice issued its report, The Criminal Justice System’s Response to Non-Disclosure of HIV. The Directive will draw upon the recommendations made concerning prosecutorial discretion. It will provide guidance to federal prosecutors in the three territories, ensuring coherent and consistent prosecution practices.

In its 2012 Mabior decision, the Supreme Court of Canada made it clear that persons living with HIV must disclose their HIV status prior to engaging in sexual activity that poses a “realistic possibility of transmission”; and the most recent scientific evidence on the risks of sexual transmission of HIV should inform this test.

The Directive to be issued by the Attorney General of Canada will reflect the most recent scientific evidence related to the risks of sexual transmission of HIV, as reviewed by the Public Health Agency of Canada, as well as the applicable criminal law as clarified by the Supreme Court of Canada. The Directive will state that, in HIV non-disclosure cases, the Director:

  • shall not prosecute where the person living with HIV has maintained a suppressed viral load (i.e. under 200 copies of the virus per millilitre of blood) because there is no realistic possibility of transmission;
  • shall generally not prosecute where the person has not maintained a suppressed viral load but used condoms or engaged only in oral sex or was taking treatment as prescribed unless other risk factors are present, because there is likely no realistic possibility of transmission in such cases;
  • shall prosecute using non-sexual criminal offences instead of sexual offences where this would better align with the individual’s situation, such as cases where the individual’s conduct was less blameworthy; and
  • must take into account whether a person living with HIV has sought or received services from public health authorities, in order to determine whether it is in the public interest to pursue criminal charges.

The criminal law will continue to apply to persons living with HIV if they do not disclose, or misrepresent, their HIV status before sexual activity that poses a realistic possibility of HIV transmission.

The Director of Public Prosecutions Act requires that directives from the Attorney General of Canada be published in the Canada Gazette. The Directive will take effect upon publication in Part I of the Canada Gazette on Saturday, December 8, 2018.

Quote

“Our criminal justice system must be responsive to current knowledge, including the most recent medical science on HIV transmission. I am proud of this important step forward in reducing the stigmatization of Canadians living with HIV while demonstrating how a scientific, evidence-based approach can help our criminal justice system remain fair, responsive and effective.”

The Honourable Jody Wilson-Raybould, P.C., Q.C., M.P.

Minister of Justice and Attorney General of Canada

Quick Facts

  • World AIDS Day originated at the 1988 World Summit of Ministers of Health on Programmes for AIDS Prevention. It is marked on December 1 of every year. This year’s theme is “Know your status”.
  • Canada’s efforts to detect and treat HIV have resulted in the majority of persons living with HIV in Canada knowing their status and receiving appropriate treatment.
  • There is no HIV-specific offence in the Criminal Code. However, persons living with HIV who do not disclose their status may be charged with aggravated sexual assault because the non-disclosure is found to invalidate their partner’s consent to engage in sexual activity in certain circumstances. This is the most serious sexual offence in the Criminal Code.
  • The Directive will take into consideration current scientific evidence and research on HIV transmission. It will provide clear direction to federal prosecutors in the territories when exercising their discretion to decide whether to prosecute HIV non-disclosure cases. The research supporting the development of the Directive was compiled by the Public Health Agency of Canada, informed the Department of Justice Canada’s Report on the Criminal Justice System’s Response to Non-Disclosure of HIV, and was published in the Canadian Medical Association Journal.
  • The Directive is the result of significant engagement and consultation with LGBTQ2+ advocates, including the HIV/AIDS Legal Network, leading academics in the field, health professionals, as well as the Director of Public Prosecutions.

Associated Links

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SOURCE Department of Justice Canada

For further information: media may contact: Célia Canon, Communications Advisor, Office of the Minister of Justice, 613-862-3270; Media Relations, Department of Justice Canada, 613-957-4207, media@justice.gc.ca

Related Links

http://www.justice.gc.ca/

Beyond Blame 2018 Meeting Report and Evaluation Now Available

Beyond Blame 2018: Challenging HIV Criminalisation was a one-day meeting for activists, advocates, judges, lawyers, scientists, healthcare professionals and researchers working to end HIV criminalisation. Held at the historic De Balie in Amsterdam, immediately preceding the 22nd International AIDS Conference (AIDS 2018), the meeting was convened by HIV JUSTICE WORLDWIDE and supported by a grant from the Robert Carr Fund for Civil Society Networks.

The Meeting Report and Evaluation, written by the meeting’s lead rapporteur, Sally Cameron, Senior Policy Analyst for the HIV Justice Network, is now available for download here.

Screen Shot 2018-10-03 at 10.56.59The meeting discussed progress on the global effort to combat the unjust use of the criminal law against people living with HIV, including practical opportunities for advocates working in different jurisdictions to share knowledge, collaborate, and energise the global fight against HIV criminalisation. The programme included keynote presentations, interactive panels, and more intimate workshops focusing on critical issues in the fight against HIV criminalisation around the world.

The more than 150 attendees at the meeting came from 30 countries covering most regions of the world including Africa, Asia and the Pacific, Eastern Europe and Central Asia, Latin and North America and Western Europe. Participation was extended to a global audience through livestreaming of the meeting on the HIV JUSTICE WORLDWIDE YouTube Channel, with interaction facilitated through the use of Twitter (using the hashtag #BeyondBlame2018) to ask questions of panellists and other speakers. See our Twitter Moments story here.

Following the meeting, participants were surveyed to gauge the event’s success. All participants rated Beyond Blame 2018 as good (6%), very good (37%), or excellent (57%), with 100% of participants saying that Beyond Blame 2018 had provided useful information and evidence they could use to advocate against HIV criminalisation. 

A video recording of the entire meeting is available on HIV JUSTICE WORLDWIDE’s YouTube Chanel.  

Key points

  • The experience of HIV criminalisation was a poor fit for individual’s actions and the consequences of those actions, particularly where actions included little or no possibility of transmission or where courts did not address scientific evidence
  • The consequences of prosecution for alleged HIV non-disclosure prior to sex are enormous and may include being ostracised, dealing with trauma and ongoing mental health issues, loss of social standing, financial instability, multiple barriers to participation in society, and sex offender registration
  • Survivors of the experience shared a sense of solidarity with others who had been through the system, and were determined to use their voices to create change so that others do not have to go through similar experiences
  • Becoming an advocate against HIV criminalisation is empowering and helps to make sense of individuals’ experiences
  • The movement against HIV criminalisation has grown significantly over the last decade but as the movement has grown, so has understanding of the breadth of the issue, with new cases and laws frequently uncovered in different parts of the world.
  • As well as stigma, there are multiple structural barriers in place enabling HIV criminalisation, including lags in getting modern science into courtrooms and incentives for police to bring cases for prosecution.
  • Community mobilisation is vital to successful advocacy. That work requires funding, education, and dialogue among those most affected to develop local agendas for change.
  • Criminalisation is complex and more work is required to build legal literacy of local communities.
  • Regional and global organisations play a vital role supporting local organisations to network and increase understanding and capacity for advocacy.
  • There have already been many advocacy successes, frequently the result of interagency collaboration and effective community mobilisation.
  • It is critical to frame advocacy against HIV criminalisation around justice, effective public health strategy and science rather than relying on science alone, as this more comprehensive framing is both more strategic and will help prevent injustices that may result from a reliance on science alone.
  • There have been lengthy delays between scientific and medical understanding of HIV being substantiated in large scale, authoritative trials, and that knowledge being accepted by courts.
  • Improving courts’ understanding that effective treatment radically reduces HIV transmission risk (galvanised in the grassroots ‘U=U’ movement) has the potential to dramatically decrease the number of prosecutions and convictions associated with HIV criminalisation and could lead to a modernisation of HIV-related laws.
  • Great care must be exercised when advocating a ‘U=U’ position at policy/law reform level, as doing so has the potential to deflect attention from issues of justice, particularly the need to repeal HIV-specific laws, stop the overly broad application of laws, and ensure that people who are not on treatment, cannot access viral load testing and/or who have a detectable viral load are not left behind.
  • Courts’ poor understanding of the effectiveness of modern antiretroviral therapies contributes to laws being inappropriately applied and people being convicted and sentenced to lengthy jail terms because of an exaggerated perception of ‘the harms’ caused by HIV.
  • HIV-related stigma remains a major impediment to the application of modern science into the courtroom, and a major issue undermining justice for people living with HIV throughout all legal systems.
  • HIV prevention, including individuals living with HIV accessing and remaining on treatment, is as much the responsibility of governments as individuals, and governments should ensure accessible, affordable and supportive health systems to enable everyone to access HIV prevention and treatment.
  • New education campaigns are required, bringing modern scientific understanding into community health education.
  • Continuing to work in silos is slowing our response to the HIV epidemic.
  • HIV criminalisation plays out in social contexts, with patriarchal social structures and gender discrimination intersecting with race, class, sexuality and other factors to exacerbate existing social inequalities.
  • Women’s efforts to seek protections from the criminal justice system are not always feminist; they often further the carceral state and promote criminalisation.
  • Interventions by some purporting to speak on behalf of women’s safety or HIV prevention efforts have delivered limited successes because social power, the structuring of laws and the ways laws are administered remain rooted in patriarchal power and structural violence.
  • Feminist approaches must recognise that women’s experiences differ according to a range of factors including race, class, types of work, immigration status, the experience of colonisation, and others.
  • For many women, HIV disclosure is not a safe option.
  • More work is needed to increase legal literacy and support for local women to develop and lead HIV criminalisation advocacy based on their local context.
  • When women affected by HIV have had the opportunity to consider the way that ‘protective’ HIV laws are likely to be applied, they have often concluded that those laws will be used against them and have taken action to advocate against the use of those laws.

At the end of the meeting, participants were asked to make some closing observations. These included:

  • Recognising that the event had allowed a variety of voices to be heard. In particular, autobiographical voices were the most authentic and most powerful: people speaking about their own experiences. This model which deferred to those communicating personal experiences, should be use when speaking to those in power.
  • Appreciating that there was enormous value in hearing concrete examples of how people are working to address HIV criminalisation, particularly when working intersectionally. It is important to capture these practical examples and make them available (noting practical examples will form the focus of the pending Advancing HIV Justice 3 report).
  • Understanding that U=U is based on a degree of privilege that is not shared by all people living with HIV. It is vital that accurate science informs HIV criminalisation as a means to reduce the number of people being prosecuted, however, people who are not on treatment are likely to become the new ‘scapegoats’. It is important that we take all opportunities to build bridges between U=U and anti-HIV criminalisation advocates, to create strong pathways to work together and support shared work.
  • Noting the importance of calling out racism and colonialism and their effects.
  • Observing that more effort is required to better understand and improve the role of police, health care providers and peer educators to limit HIV criminalisation.
  • Exploring innovative ways to advocate against HIV criminalisation, including community education work through the use of art, theatre, dance and other mechanisms.
  • Concluding that we must challenge ourselves going forward. That we must make the circle bigger. That next time we meet, we should challenge ourselves to bring someone who doesn’t agree with us. That we each find five people who aren’t on our side or don’t believe HIV criminalisation is a problem and we find ways and means (including funding) to bring them to the next Beyond Blame.

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

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

11:20 – 12:10 What About Human Rights? The Benefits and Pitfalls of Using Science in Our Advocacy to End HIV Criminalisation Facilitator: Laurel Sprague (UNAIDS) With: Chris Beyrer (John Hopkins Bloomberg School of Public Health), Edwin Cameron (Constitutional Court of South Africa), Richard Elliott (Canadian HIV/AIDS Legal Network), Lynette Mabote (ARASA), Paula Munderi (IAPAC)

12:10 – 13:00 Women and HIV Criminalisation: Feminist Perspectives Facilitator: Naina Khanna (Positive Women’s Network – USA) With: Sarai Chisala-Tempelhoff (Women’s Lawyers Association, Malawi), Michaela Clayton (ARASA), Kristin Dunn (AIDS Saskatoon), Deon Haywood (Women With A Vision)

UK: Avon & Somerset police withdraw untrue claims that HIV could be contracted through spitting

Police finally change false HIV claims after being accused of ‘preying on people’s prejudices’ 

Avon and Somerset Police falsely claimed that HIV could be transferred through saliva

Bristol’s police force has finally changed untrue claims it made about HIV, eight months after it was accused of “preying on people’s prejudices.”

Avon and Somerset Police announced last November that it would be rolling out controversial spit hoods to be used on suspects to protect officers.

But during the announcement, the force made untrue claims that HIV could be contracted through spitting, causing outrage amongst campaign groups.

The force did apologise for “any offence caused” to anyone living with HIV, but then repeated the claim that Human Immunodeficiency Virus (HIV) can be transferred through spit.

Now eight months after police made the claim, Avon and Somerset Constabulary has now confirmed that HIV will not be used as a reason to introduce spit guards after national guidance was changed.

Assistant Chief Constable Steve Cullen said: “I’d like to thank both charities and our communities for the advice and feedback they gave us following our announcement last year.

“We apologised unreservedly at the time if we caused any offence to people living with HIV.

“It has never been our intention to reinforce stigma. Every day we work to reduce stigma and discrimination experienced by communities and individuals who are victims of hate crime in all its guises.”

In January, 2018 Bristol Live reported that Avon and Somerset Police said the false claims about the transfer of HIV were taken from national guidlines.

The Bristol wing of the HIV advocacy group ACTup! Launched a petition calling for the force to retract the statement.

A spokesperson for the group said officers deserve not to be spat at while working and the group is not calling for the recall of spit hoods but raised issues with the “poorly researched” press announcement.

ACC Cullen added: “Our aim has never been to focus attention on people living with health conditions, but to target people who use spit as a weapon.

“We assured our communities we would seek to ensure that we learn from this and would share our learnings across the police service, providing clarity and direction.

“We also invited Brigstowe to help support our training for officers and staff

“I’m delighted that this has now been done.”

The National Police Chiefs Council, which issues guidance to police forces across the UK, said in January the advice on spit guards has not changed since it published a report in March 2017, but specific guidance on HIV was sent to police forces after feedback was received by Avon and Somerset.

The police chiefs’ council guidance on spit guards released in March last year said the national picture for blood-borne viruses like HIV affecting officers was “unclear “.

HIV is found in many bodily fluids of a sufferer including semen, vaginal and anal fluids, blood and breast milk.

The disease is most commonly contracted through unprotected sex and the sharing of needles. NHS England states HIV cannot be contracted through saliva.

Spit hoods made of mesh are shaped like a plastic bag and are put over the heads of suspects who had threatened to spit, have attempted to spit or have spat before.

 

 

US: Kentucky bill making it a felony to expose police officers to bodily fluids goes to full House for consideration after being approved by House Committee

KENTUCKY (2/15/18) — A bill that would make it a felony to intentionally expose a law enforcement officer to bodily fluids or bodily waste was approved yesterday by the House Judiciary Committee.

Kentucky jailers and some other officials are protected against someone intentionally causing them to come into contact with bodily fluids and waste, but that “there’s a gap in the law that doesn’t protect our police officers,” said Rep. Stan Lee, R-Lexington, the sponsor of House Bill 193.

The legislation would carry stiffer penalties if the bodily fluids or waste carry—or could carry—a communicable disease, including hepatitis C virus or HIV. Both crimes would be considered felony assault under the proposal.

Fraternal Order of Police Bluegrass Lodge # 4 President Jason Rothermund told the committee creating a crime for intentionally forcing bodily fluids or waste onto a police or other law enforcement officer, with the increased penalty for communicable disease, will help prosecution of such acts. Current statutes for disorderly conduct and wanton endangerment are not adequate for prosecution, he said.

“We don’t want them (the officers) to have to go find some obscure charge,” said Rothermund, but instead want behavior specifically addressed in law.

Lee said he would be willing to consider floor amendments that would ratchet down some of the bill’s penalties to misdemeanors after some lawmakers, including Rep. Jason Nemes, R-Louisville, expressed concern with the felony provisions.

Nemes, who has a brother who is a peace officer, said he believes more protection is needed but that he believes the penalties proposed in HB 193 are too harsh.

Rep. McKenzie Cantrell, D-Louisville, had concerns that the scope of the bill is wider than it needs to be.

“Because there’s not a definition of what a communicable disease is and there’s no nexus between the exposure to the fluids and actual transmission of the disease, I’m going to have to vote no today,” she said.

Among those voting for the bill was Rep. Robert Benvenuti, R-Lexington, who said the risk of transmitting communicable disease through bodily fluids and waste is real and carries consequences.

“Clearly there should be a consequence to putting that officer in harm’s way and making that officer go through a battery of testing and unknown situations with their spouse, etc.,” he said.

HB 193 now goes to the full House for consideration.

Published in SurfKY News on February 15, 2018

 

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.

 

UK: Avon and Somerset police statement over risk of HIV from spitting allegedly based on National Police guidelines

Police say false HIV claims over spitting were taken from national guidelines

Avon and Somerset Police still have not retracted their statement despite pressure from campaigners

The police force for Bristol and the surrounding areas say false claims made about the transfer of HIV were taken from national guidelines.

Avon and Somerset Police announced last year it would be introducing the use of spit guards in 2018 to remove the risk of officers catching diseases like the human immunodeficiency virus or hepatitis.

However, campaign groups were quick to point out HIV cannot be passed on through saliva and accused the force of “praying on people’s prejudices.”

The force did apologise for “any offence caused” to people living with HIV or Hepatitis B or C but still has not retracted the statements despite calls from campaigners to do so.

In January 24, a Freedom of Information request revealed no Avon and Somerset Police officers had caught an infection disease after being spat at since 2012/13.

When asked by the Bristol Post if the force would retract the statements about HIV, a spokesman said on January 25: “The information we used previously in the roll-out of spit guards was based on National Police Chiefs Council (NPCC) guidance.

“Following feedback from the public and consultation with local charities, Assistant Chief Constable Stephen Cullen asked the NPCC to seek medical opinion. As a result of ACC Cullen’s representations the NPCC has altered its guidance to forces.”

The Bristol wing of the HIV advocacy group ACTup! Launched a petition calling for the force to retract the statement.

A spokesperson for the group said officers deserve not to be spat at while working and the group is not calling for the recall of spit hoods but raised issues with the “poorly researched” press announcement.

On November 17 Avon and Somerset Police announced it would be introducing the use of ‘spit hoods’ across the force area from next year. The hoods made of mesh are shaped like a plastic bag and are put over the heads of suspects who had threatened to spit, have attempted to spit or have spat before.

The National Police Chiefs Council, which issues guidance to police forces across the UK, said the advice on spit guards has not changed since it published a report in March 2017, but specific guidance on HIV was sent to police forces after feedback was received by Avon and Somerset.

A spokesperson said: “Our position paper on this was published back in March last year and our overall position on this has not changed. However, after receiving feedback from colleagues in Avon and Somerset we wrote to forces to give specific guidance on HIV and spit guards – entirely in line with our position.”

The police chief’s council guidance on spit guards released in March last year says the national picture for blood-borne viruses like HIV affecting officers is “unclear “.

It adds: “There are annually a very significant number of officers who are receiving precautionary treatment to prevent blood-borne viruses initial following spitting and biting incidents. Some of this treatment is intrusive, debilitating and can have a significant impact on officers’ personal lives.”

The conclusion reads: “The NPCC position is that the risk of transfer of blood-borne viruses through spitting or biting is very low, however the impact of infection would be extremely high.”

HIV is found in many bodily fluids of a sufferer including semen, vaginal and anal fluids, blood and breast milk.

The disease is most commonly contracted through unprotected sex and the sharing of needles. NHS England states HIV cannot be contracted through saliva.

Published in the Bristol Post on Jan 30, 2018

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.”

Malawi: Police officers urged to stop criminalising sex-workers due to their HIV status

Malawi law enforcers urged to desist from criminalizing sex-workers over HIV/AIDS status

LILONGWE-(MaraviPost)-The Malawi Police Services’ (MPS) officers have been urged to desist from criminalizing sex-workers due to their HIV and AIDS status when they come to conflict with the law.

This reduce cases of defaulting the drug prolonged-life, ARVs when are on remand cell as they become uncooperative with the law-enforcers

The call will also enhance cordial relationship men in uniform they have with sex-worker as they harbor criminals when playing their trade.

In an exclusive interview with The Maravi Post in the sidelines of World AIDSDAY that falls on December 1st yearly, Priest Mpemba, Kanengo Police Model station HIV/AIDS Coordinator, said time was ripe for officers handle sex-workers in line with human rights principles.

Mpemba who is also DNA Forensic Investigator observed that some law-enforcers criminalize sex-workers during sweeping exercises due to their serial status.

The HIV/AIDS coordinator added that the laws of land do not criminalize sex-work but the act of being conflict with the constitution including robbery and violence among others.

On legalization of sex work in the country, the DNA Forensic Investigators said the matter was a policy issue which the county’s leadership must trade carefully regarding to how the society perceives sex workers.

With extensive sensitization the station is taking on HIV/AIDS, Mpemba expects a cordial relationship between the police and the public in ending the HIV/AIDS pandemic in the country.

On skills handling suspects living with HIV and AIDS, the coordinator said that the station expects fewer lawsuits.

“This year’s World AIDS DAY commemoration must focus as well on how sex-workers are being treated in the society. They are into that trade with various reasons but their rights must be respected as human beings. This is the reason the station using its own resources has been into intensive sensitization on the virus.

“Our officers should also treat suspects especially those living with the virus with dignity as human that they continue taking medication when are on remand. This will reduce drug defaulters and ease lawsuits the station receives,” says Mpemba.

Speaking Friday on World AIDS Day, at the Blantyre Youth Centre The Minister of Health and Population, Atupele Muluzi said that right to health is a fundamental human right, everybody has the right to the enjoyment of the highest attainable standard of physical and mental health.

This year’s commemoration was under the theme ‘Right to Health: Access to Quality HIV Prevention and Treatment Services”.

Before the function, the Minister opened Umodzi Family Centre at Queen Elizabeth Central Hospital. The centre will help facilitate HIV testing and treatment, TB screaming and offer reproductive health services.

AIDS is no longer the high-profile public health menace it once was thanks to the discovery in 2011 that antiretroviral treatment can not only suppress HIV in the bloodstream and reduce the risk of spreading the virus, but also, some experts predict, eventually end the epidemic.

Published in the Maravi Post on Dec 3, 2017

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.