African HIV criminalisation achievements and challenges highlighted at ICASA 2013

The African continent has more countries with overly broad and vague HIV-specific laws relating to HIV non-disclosure, exposure and/or transmission than any other global region, nearly all of which have been enacted in the past decade.

Although North America is the continent with the most known prosecutions, 26 African countries have overly broad and/ or vague HIV-specific criminal laws with a further three countries considering new HIV-specific criminal laws. This is worrying and disappointing given the growing evidence base and consensus of international agencies that such laws are counterproductive to HIV prevention efforts and generally fail to deliver ‘justice’.

Although there are few known prosecutions the majority of those prosecuted have been women – who are usually the first in a couple to know their HIV status due to routine antenatal testing and who are often erroneously accused of bringing HIV into a relationship.

In addition, South Africa recently prosecuted alleged criminal HIV transmission as attempted murder despite no evidence of intent to harm. (Read the judgement from the High Court of South Africa on alleged HIV exposure being attempted murder here.)

However, there have been some positive legal changes brought about by local advocacy supported by international civil society and UN agencies. Since 2010, at least four countries – Congo, Guinea, Senegal and Togo – have revised their existing HIV-related legislation or adopted new legislation that restrict use of criminal law to cases of intentional transmission.

And more recently advocacy in Malawi and Nigeria has resulted in the removal of overly broad HIV-specific criminal statutes from draft omnibus HIV Bills.

View the poster below or download the A4 double-sided printable version of the poster here.

Advancing HIV Justice: Achievements and challenges in global advocacy against HIV criminalisation – African…

Sweden: Court of Appeal acquits ‘HIV exposure’ case, recognises National Board of Health and Welfare endorsement of ‘Swiss statement’, Minister for Social Affairs will consider reviewing application of law

Today, the Court of Appeal for Skåne and Blekinge has acquitted a man from Malmö previously convicted of exposing four women to HIV on the grounds that since he had a stable undetectable viral load on antiretrovirall treatment with no other STIs he could not cause danger to another person.

He had previously been sentenced to a year in prison and and fined 150,000 kronor (€17,000) by the lower court, but was released last week pending the appeal after the Court consulted experts from the Swedish Institute for Communicable Disease Control (SMI).

A press release from the Swedish Courts notes the following (unofficial translation)

The Court of Appeal, for its assessment of the probability of transmission by sexual intercourse, had access to information other than that which existed at the district court. The Court of Appeal has obtained an expert opinion from the Swedish Institute for Infectious Disease Control (SMI) regarding the risk of transmission of HIV through unprotected sexual intercourse. Furthermore, Professor Jan Albert of the Karolinska Institute, was consulted as an expert.

For expert opinion and data Jan Albert has said it can be clearly concluded that the risk of transmission of HIV in vaginal intercourse without a condom is very low, provided that the HIV-infected party is on stable HIV treatment. For an HIV-positive patient to be considered to be on stable HIV treatment, as is apparent from the opinion, it requires that the patient has a consistently high adherence to their medication, that at least two consecutive viral measurements with 3-6 month intervals show that patient’s virus levels in the blood were below the lowest detectable levels in routine testing, and the patient does not carry any other sexually transmitted infection .

The Court of Appeal noted in its judgment that the investigation did not show anything other than the accused was on stable HIV treatment during the time that the charges related to, and based on what the SMI and Jan Albert have said about risk of infection, assessing the likelihood that sexual intercourse to which the charges relate means that the risk of HIV transmission was so small that no real danger could be presupposed. Since this does not meet the required elements of the crime of creating danger to another, the indictment was dismissed.

Major policy shift

The ruling reflects a major shift in policy announced last week by the National Board of Health and Welfare (Socialstyrelsen).

In a press release entitled, ‘Effective treatment reduces the risk of infection by HIV’, the agency, which is part of the Swedish Ministry of Health and Social Affairs, clarified the treating physician and the individual’s responsibility under the Communicable Diseases Act – which creates a ‘disclosure obligation’ for anyone with an infectious disease.

The criteria to not be legally bound to disclose are very similar to those set out in January 2008 by the Swiss Federal AIDS Commission’s ‘Swiss statement’. They are, as follows:

For treatment of HIV infection to be considered well-functioning, patients must be highly adherent to antiretroviral treatment. Virus levels in the blood should be tested regularly, verified by two measurements between three to six months apart and the result should be virus levels below 50 copies per milliliter.

Follow-up tests should be performed two to four times a year. No other ongoing sexually transmitted disease should be suspected, as this could increase the risk of infection. When these criteria are met, the SMI estimates that infectivity is minimized in a person infected with HIV similar to wearing a condom during sexual intercourse.

HIV infection is one of the dangerous diseases included under the Communicable Diseases Act. The law states that the attending physician has the responsibility to advise people with dangerous diseases of appropriate conduct. It also says that if the person knows, or has reason to suspect, that he or she is carrying a contagious disease that person is obliged to protect others from infection.

The attending physician, when he or she takes a position on the conduct that the individual should have, should consider that a person with HIV infection who is on well functioning treatment is not required to inform their sexual partners about their infection…

People who have HIV infection, however, must act on their own initiative if there is a significant risk, for example if he or she also gets another sexually transmitted infection. This is true no matter what advice the person has previously received by their treating physician. A significant risk includes situations when someone risks coming into contact with his or her body fluids, for example during blood tests, at the dentists, or during sex with a risk of bleeding.

Coaltion of HIV experts

The National Board of Health and Welfare was itself influenced by a coalition of HIV experts. An editorial by Johan Carlson (Director of SMI), Anders Tegnell  (State epidemiologist, SMI), Jan Albert (Professor of Communicable Diseases, Karolinska Institute and Senior Physician at Karolinska University Hospital) and

Anders Sönnerborg (Professor of Clinical Virology,Karolinska Institut and Senior Physician at Karolinska University Hospital) entitled ‘HIV is no longer a life-threatening disease’, also published last week, heralded this new (for Sweden) paradigm.

Today, 21 October, SMI publishes along with Reference Group for Antiviral Therapy (RAV) a report summarising the state of knowledge with regard to the significant reduction in infectivity in treated HIV infection.

SMI and RAV estimates that the infectivity of a patient living with HIV and who have been stabilized on treatment is very low by sexual contact and minimal if a condom is used in vaginal and anal intercourse. This applies provided that there is no other sexually transmitted infections that can affect the risk of HIV transmission. It is therefore important to always use a condom, especially to protect against other sexually transmitted infections, but also to minimize any residual infectious risk for HIV.

This knowledge provides two important conclusions. Firstly, we improve the chances of early diagnosis and initiate treatment as early as possible…

The second conclusion is that current knowledge about HIV will have to influence society’s attitudes to and treatment of people living with HIV. Knowledge about HIV, how the virus is transmitted and what it means to live with HIV, need to be improved in the whole society. Especially within the health care and disease control work, but it is equally important in other areas of society, such as education and social services, the media and the judiciary.

Minister for Social Affairs will consider reviewing application of law

Göran Hägglund, Sweden’s Minister for Social Affairs reacted to the report by telling Sweden’s public broadcaster, SVT, that he will consider reviewing the application of law as it relates to HIV non-disclosure, exposure and transmission.

“If you have an illness that has the potential to infect, it is reasonable to disclose,” he said. “I just think that one would like to know in this situation. But the application of law is another question. Where it is possible to discuss how the law looks and applied, it may be time to consider a change.”

This policy shift is a major victory for the advocates who have been working tirelessly to change Sweden’s draconian attitude towards people living with HIV, notably the partnership of RFSU (the Swedish Association for Sexuality Education), HIV-Sweden and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) who have been lobbying and campaigning to raise awareness and advocate against Sweden’s over-punitive HIV-related policies.

Hägglund also reacted to a recently-published editorial by Marielle Nakunzi, a lawyer at RFSU, which argued that the justice system has such an outdated view of HIV that it still lives in the 1980s.

“It is a matter of making sure that we always have laws that are in tune with the state of knowledge available,” he told SVT. “Therefore, we should always consider the knowledge we have. It’s about educating the justice system.”

US: House Appropriations Committee passes amendment that would fund review of HIV-specific criminal laws

The United States is closer than ever before in ensuring that their HIV-specific laws are reviewed and amended in order to be consistent with current medical and scientific knowledge.

Earlier this week, the U.S. House Appropriations Committee passed an amendment proposed by Congresswoman Barbara Lee to the FY2014 Commerce-Justice-Science Appropriations Act that would require the Attorney General to initiate a review of Federal and State laws, policies, and regulations regarding criminal and related civil commitment cases involving people living with HIV.

This wording is very similar to the content of Lee’s REPEAL HIV Discrimination Act, which was re-introduced in May with bi-partisan support, and which currently has 32 co-sponsors.

“HIV criminalization laws breed, discrimination, distrust, and hatred. These laws are based on fear, not science. This is an important first step in ensuring that our laws reflect current scientific understandings of HIV.” notes Congresswoman Lee in a press release. This amendment passed on a voice vote as part of the manager’s amendment.

The amendment reads as follows:

Modernizing laws with respect to people living with HIV/AIDS.

The Committee is aware of the position of the President’s Advisory Council on AIDS (PACHA) that current criminal laws require modernization, should be consistent with current medical and scientific knowledge and avoid imposition of unwarranted punishment based on health and disability status.  The Committee directs the Attorney General, within 90 days following enactment of this Act, to initiate a review of Federal and State laws, policies, and regulations regarding criminal and related civil commitment cases involving people living with HIV/AIDS. The Committee further directs the Attorney General, no later than 180 days from initiating the review, to make best practice recommendations to ensure such policies do not place unique or additional burdens on individuals living with HIV/AIDS and reflect contemporary understanding of HIV transmission routes and associated benefits of treatment.

The Appropriations Act (officially titled ‘S.1329 : An original bill making appropriations for Departments of Commerce and Justice, and Science, and Related Agencies for the fiscal year ending September 30, 2014, and for other purposes’) has now been placed on Senate Legislative Calendar.

The Sero Project has issued a press release welcoming the amendment and explaining what it means for advocacy against overly-broad HIV-specific criminal laws in the United States.

SERO. Appropriations Amendment Release

Global Commission newsletter highlights recent developments on HIV and the law around the world

Dear subscribers, We are delighted to share issue 2 of the Global Commission on HIV and the Law Newsletter – Issue 2 for 2013. Since the last Newsletter was released, there have been a number of significant developments on HIV and the law some of which are briefly described below in digest format.

United States Conference of Mayors calls for “the elimination of HIV-specific criminal laws”

Today, the U.S. Conference of Mayors passed a resolution calling for “the elimination of HIV-specific criminal laws and implementation of approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of similar health and safety risks.”

It goes on to support the REPEAL HIV Discrimination Act and endorses the recommendations of the Presidential Advisory Council on HIV/AIDS for ending federal and state HIV-specific criminal laws, prosecutions, and civil commitments.

Full text below.

HIV DISCRIMINATION AND CRIMINALIZATION

WHEREAS, The U.S. Conference of Mayors has been a national leader on strategies to address HIV/AIDS for three decades, establishing in 1984 an HIV/AIDS Program and implementing a HIV/AIDS Prevention Grants Program with funding from the Centers for Disease Control and Prevention (CDC); and

WHEREAS, The National HIV/AIDS Strategy (NHAS) released by the White House includes a statement on the problem and public health consequences of HIV criminalization and notes that many state HIV-specific criminal laws reflect long-outdated misperceptions of HIV’s modes and relative risks of transmission; that criminal law has been unjustly used in the United States to prosecute and disproportionately sentence people with HIV; and that legislators reconsider whether these laws further the public interest and support public health approaches to preventing and treating HIV; and

WHEREAS, nearly all HIV-specific criminal laws do not consider correct and consistent condom use and effective antiretroviral therapy that reduces the risk of HIV transmission to near-zero as evidence of a lack of intent or ability to harm; and behaviors that according to the Centers for Disease Control and Prevention (CDC) have negligible risk of transmitting HIV, such as spitting and biting, have resulted in sentences as long as 35 years: and

WHEREAS, sound criminal justice and public health policy toward people living with HIV is consistent with an evidence-based approach to disease control and research demonstrates that HIV-specific laws do not reduce transmission or increase disclosure and may discourage HIV testing; and

WHEREAS, The Presidential Advisory Council on HIV AIDS, the Centers for Disease Control, and the United Nations Global Commission on HIV and the Law have conducted extensive scientific research and evidence reviews, finding that public health is endangered by HIV discrimination and criminalization and calling for comprehensive revision of state and federal laws and regulations,

NOW, THEREFORE, BE IT RESOLVED, that the U.S. Conference of Mayors calls for the elimination of HIV-specific criminal laws and implementation of approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of similar health and safety risks; and supports legislation, such as the REPEAL HIV Discrimination Act, that advances these objectives: and

BE IT FURTHER RESOLVED, that the U.S. Conference of Mayors endorses the recommendations of the Presidential Advisory Council on HIV/AIDS for ending federal and state HIV-specific criminal laws, prosecutions, and civil commitments.

Projected Cost: Unknown

US Conference of Mayors HIV Criminalization Resolution, June 25 2013

US: Congress passes amendment allowing for review of US military policy on HIV non-disclosure/exposure prosecutions

A bipartisan amendment to the National Defense Authorization Act approved by the House Thursday evening requires the Department of Defense to conduct an internal review of policies and prosecutions related to military members living with HIV. Currently the military can try service-members with HIV under a variety of charges, including failing to obey an order for having unprotected sex, not disclosing an HIV-positive status, or for aggravated assault, wherein HIV is the factor for the more serious charge.

The amendment by Reps. Barbara Lee (D-Calif.) and Ileana Ros-Lehtinen (R-Fla.) is the first time Congress has voted on HIV-criminalization matters since the passage of the 1990 Ryan White CARE Act, which required states to certify they had a process to prosecute deliberate transmission of HIV. Rep Lee issued the following statement on the adoption of the amendment:

I’m so pleased that this is a bi-partisan effort and am proud that my colleague Congresswoman Ileana Ros-Lehtinen has joined me in this effort. Modernizing laws when it comes to our military is essential, and the laws that dictate the lives of our service members should reflect contemporary understanding of the science of HIV. I’m proud that the House has recognized this essential piece of working towards an AIDS-free generation, and my amendment would take an important first step in ensuring that our laws reflect current scientific understandings of HIV.

The two lawmakers are also co-sponsors of the Repeal HIV Discrimination Act, which would push states to repeal HIV-specific statutes in favor of laws that would only allow prosecution against HIV-positive persons if there is evidence of intent to infect and/or actual harm caused.

The amendment requires the Defense Department to issue a report no later than 180 days after the bill is signed into law. This report would have to demonstrate that prosecutions related to HIV exposure and transmission are based on a medically accurate understanding of the infection and treatment. It would also require the U.S. Military to review all recent prosecutions and make recommendations to improve the system to ensure that prosecutions are based on scientifically accurate risks.

US: LA Times publishes editorial in favour of REPEAL Act, highlights spitting and biting prosecutions

A bipartisan bill introduced in the House calls for a review of state laws that criminalize behavior by people with HIV, including many laws that seem anachronistic or inappropriate given what has been learned during the last three decades about the transmission and treatment of the virus that causes AIDS. The bill should be passed.

The Repeal HIV Discrimination Act of 2013, introduced by Reps. Barbara Lee (D-Oakland) and Ileana Ros-Lehtinen (R-Fla.), would not by itself repeal any state laws. The federal government can’t do that. But the bill would encourage state governments to repeal laws that are based on outdated fears. It is backed by the Presidential Advisory Council on HIV/AIDS and is in line with the UN’s stand that criminalization should be limited to cases in which a person knows he or she has HIV, intends to transmit it and successfully does so.

There are HIV-specific criminal statutes on the books in 32 states, and some are fairly common sense. In California, which has one of the better laws, people who know they are HIV positive must disclose that fact to their sex partners before having unprotected sex. If they do not, and if they “act with intent to infect,” they may be charged with a felony.

But 13 states have laws that make it a crime for an infected person to spit at, bite or throw their blood on others. That might have seemed reasonable at the height of the panic over AIDS, but we now know it is not. According to the Centers for Disease Control and Prevention, only blood, semen, vaginal secretions and breast milk can transmit the virus. And to do so, they must come in contact with a mucous membrane or damaged tissue or be injected into the bloodstream. Saliva does not transmit HIV. It is extraordinarily rare for a human bite to transmit HIV.

In the last few years, there have been dozens of cases documented by the Center for HIV Law and Policy in which people have been charged with criminally transmitting HIV by biting or spitting (even though no transmission occurred) or convicted of failing to disclose to a sexual partner that they were HIV positive (even if the virus was not transmitted). In some states, people with these convictions have to register as sex offenders.

Though treatment has come a long way, HIV is still an extremely serious and basically incurable virus, and the House bill would not stop the prosecution of people who deliberately (and successfully) infect others. It is certainly wrong for infected people to cavalierly or maliciously have sex without disclosing their HIV-positive status and without taking precautions against transmitting the virus. But there is no reason to keep the laws against spitting and biting on the books. They are based on fears that have since been disproved by science.

GNP+ and the HIV Justice Network release ‘Advancing HIV Justice: a progress report of achievements and challenges in global advocacy against HIV criminalisation’

A new report released today by the Global Network of People Living with HIV (GNP+) and the HIV Justice Network highlights the tireless work of advocates around the world challenging inappropriate criminal laws and prosecutions for HIV non-disclosure, potential or perceived exposure and transmission.

Advancing HIV Justice shows that advocates around the working to repeal, modernise or otherwise limit laws and policies that inappropriately regulate and punish people living with HIV have achieved considerable success.  This is especially the case when policymakers or criminal justice system actors are open to learning more about scientific and medical advances in HIV prevention, treatment, care and support, and involve civil society – led by people living with HIV – to ensure that critical criminal law and human rights principles are followed.

“That is why we welcome the new, detailed guidance on limiting overly broad HIV criminalisation that was released last week by UNAIDS,” says Kevin Moody, International Coordinator and CEO of GNP+. “The guidance will help to continue advancing HIV justice, serving as a powerful new tool for people living with HIV, and those advocating on our behalf, in our work with policymakers and criminal justice system actors.”

Writing in the foreword, Susan Timberlake, Chief, Human Rights and Law Division, UNAIDS Secretariat, notes that Advancing HIV Justice “powerfully demonstrates that civil society advocacy on this issue is not only alive – it goes from strength to strength.”

In the 18-month period covered by the report (September 2011 to March 2013), significant advances were made in terms of:

  • building the global evidence base in order to better understand the ‘who, what, where, when and why’ of laws and prosecutions around the world;
  • generating persuasive social science that shows exactly why overly broad HIV criminalisation does more harm than good, often achieving exactly the opposite of what law- and policymakers intend in terms of public health and human rights;
  • challenging inappropriate or overly broad new laws in Africa, Asia, the Caribbean, Latin America and the United States;
  • advocating for law reform in Europe and the United States, including successful repeal in Denmark and modernisation of one of Switzerland’s two laws used to prosecute potential or perceived HIV exposure; and
  • addressing legal processes and enforcement, including the creation of prosecutorial guidelines in Scotland.

However, the report also highlights that the road to law and policy reform is not always straightforward or easy, due not only to complex intersections of laws, policies and practices, but also because of each country’s unique social, epidemiological and cultural contexts.

“Despite the many incremental successes of the past 18 months, more work and more funding is required to strengthen advocacy capacity,” says the HIV Justice Network’s co-ordinator, Edwin J Bernard, who co-authored the report with Sally Cameron. “HIV criminalisation is a complex issue. It entails a detailed understanding of diverse aspects of the criminal justice system; collection and analysis of evidence of the scope and impact of prosecutions across local and national boundaries; articulation and argument about complex moral and ethical issues of trust, blame and responsibility; and inclusion of HIV prevention and human rights priorities. Development of strategies against HIV criminalisation relevant to each individual jurisdiction requires time, effort, and the involvement of multidisciplinary experts.”

Advancing HIV Justice: A progress report of achievements and challenges in global advocacy against HIV criminalisation is available as a 52 page pdf that can be read or downloaded at: http://www.advancing.hivjustice.net

Kenya: Advocates lobby to repeal HIV-specific law criminalising non-disclosure/'exposure'

SOME activists want a section of HIV/Aids Prevention and Control Act that criminalise willing infection of a person with the virus to be repealed. The activists said section 22-24 which say a person who is aware of being infected with HIV shall be prosecuted, a move they say will increase infection rate in the country.

REPEAL Legislation Seeks to End HIV Criminalization

REPEAL Legislation Seeks to End HIV Criminalization Spurred by the harsh criminal sentences implemented under an outdated law, on May 7, Representatives Barbara Lee (D-California) and Ileana Ros-Lehtinen (R-Florida) introduced the bipartisan legislation the REPEAL (Repeal Existing Policies That Encourage and Allow Legal) HIV Discrimination Act.