Plenary Session 3: Seminar on HIV Criminalisation, Berlin, 20 September 2012 (EATG/DAH/IPPF/HIV in Europe)

Workshop Summaries
– Susan Timberlake (UNAIDS): Workshop 1 – How to advocate for prosecutorial guidelines
– Holger Wicht (DAH): Workshop 2 – Better laws through science (Austria/Germany/Switzerland)
– Lucy Stackpool-Moore (IPPF): Workshop 3 – Filling the evidence gaps
– Peter Wiessner (EATG): Workshop 4 – Understanding and creating linkages between HIV criminalisation and punitive laws and policies affecting key populations

Q&A Session
– Ton Coenen (HIV in Europe, Netherlands)
– Nikos Dedes (EATG, Greece)
– Arwel Jones (Crown Prosecutions Service, England & Wales)
– Petra Bayr (Parliamentarian, Austria)
– Timur Abdullaev (EATG, Uzbekistan)

Next steps
– Silke Klumb (DAH)
– Peter Wiessner (EATG)
– Kevin Osborne (IPPF)
– Ton Coenen (HIV in Europe)

Video produced by Nicholas Feustel, georgetown media, for the HIV Justice Network

How to Fight HIV Criminalization in Courts of Law and Public Opinion | AIDS Ark

As the XIX International AIDS Conference (AIDS 2012) in Washington, DC, presented hopes of achieving an AIDS-free generation, some advocates focused attention on a major obstacle to this goal: the criminalization of people living with or at high risk for HIV.

Challenges & Changes to Law: Enabling Legal Environments in the HIV Response " NGO Delegation to the UNAIDS PCB

From the Global Commission on HIV and the Law, “Risks, Rights and Health” (note: this infographic does not include criminalization of non-disclosure). Click to enlarge.

Journalist Rod McCullom interviews Rep Barbara Lee about the REPEAL HIV Discrimination Act

Pop quiz: Which nation leads the world in the prosecutions of HIV exposure and/or transmission? Perennial human rights violators such as Russia, China, or dictatorships in the Middle East or Africa? Not even close. The surprising answer: The United States. In more than 60 nations it is a crime to expose another person to or transmit HIV.

Denmark: Man convicted in 2007 under now suspended law acquitted; further cases to be reviewed

A court in Denmark has acquitted a person living with HIV who had previously been found guilty under the country’s now-suspended HIV-specific criminal statute. The man’s sentence was reduced to six months, due to his conviction for other, drug-related, offences.

In its brief ruling, published below, the Eastern High Court reasoned that since there is now evidence that HIV is not a “life-threatening condition” he could no longer be guilty of exposing another to a “life-threatening illness”.

The Danish Justice Minister suspended the law in February 2011 noting that HIV can no longer be considered life threatening because, for people living with HIV in Denmark who are on treatment, HIV has become a manageable, chronic health condition.

According to sources in Denmark, it is believed that the courts are in the process of reviewing all HIV-related criminal cases from 2007 – this is the year that National Board of Health informed the Ministry of Justice that HIV was no longer a life threating illness (as defined in the law), even though it took the Ministry another four years to suspend the law.

This would make Denmark the first country in the world to fulfill the fifth recommendation relating to HIV criminalisation of the Global Commission on HIV and the Law.

2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.

Denmark: Eastern High Court Prosecutor v. Jackie Madsen,7 August 2012

Eastern High Court Prosecutor v. Jackie Madsen, 7 August 2012 (unofficial translation).

Denmark: Eastern High Court Prosecutor v. Jackie Madsen,7 August 2012

Transcript the Eastern High Court book of judgments

Verdict

Delivered on August 7th 2012 by the Eastern High Court’s 13th department

(country judges (names) with lay assessors)

…

Prosecutor v. Jackie Madsen

…

(Lawyer (Name)… )

Frederiksberg Legal verdict December 20th 2007 (…) is being appealed by the prosecution based on claim of acquittal of violation of Penal Code § 252 paragraph 2 (issue 2) and appeasement

Defendant has alleged alleviating circumstances.

High Court’s reasoning and result

Since HIV could not, at the time of the crime is crime, be considered a life-threatening illness according to the Penal Code § 252, paragraph 2, the defendant is acquitted for issue 1 in accordance with the prosecution’s claim on this matter.

As a result of this, the sentence is reduced to 6 months of imprisonment. In the decision of the sentence, the court has taken into account (put weight on) the amount of heroin and that the accused himself was a drug addict.

Moreover, the verdict is confirmed.

It is thus decided:

The District Court’s judgment in the case against Jackie Madsen is altered so that he is punished by imprisonment for 6 months.

The Treasury must pay the costs of the High Court.

(Sign.)

The accuracy of the transcript is confirmed. Eastern High Court…

US: Illinois modernises its HIV-specific criminal law

By Ramon Gardenhire (from AIDS Foundation of Chicago)

In my role as director of government relations for the AIDS Foundation of Chicago (AFC), I have to come to terms with the reality that the legislative process often means having to make ugly compromises.

This sentiment hit home this past legislative session, when the Illinois General Assembly passed a bill that would amend the state’s law that makes exposing someone to HIV a crime.

The Illinois criminal transmission of HIV law, on the books since 1989, has no basis in science, discriminates against people with HIV, and stigmatizes HIV.

AFC strongly opposes the law and fights for its repeal. However, when it became abundantly clear that SB 3673 was going to pass with overwhelming support, we made a strategic decision to work the bill’s sponsor to minimize the legislation’s harm as much as possible.

We decided to make a bad law better.

SB 3673, introduced by Sen. Dale Righter (R – Mattoon) and sponsored in the House by Rep. Jim Sacia (R – Freeport) unanimously passed both chambers in the Illinois General Assembly. It amends the current HIV criminal transmission law to allow prosecutors to access medical records to learn if someone knew their HIV status, a fact that has to be established before an individual can be prosecuted.

This bill was a response to a tragic case in Whiteside County, Ill., in 2009, involving a man who allegedly knowingly exposed several women to HIV. The state’s strong HIV confidentiality law prevented police from accessing the suspect’s medical records to determine if he knew he had HIV. After charging him with 13 counts of criminally transmitting HIV to another person, the man was only sentenced with one count. There was no way to prove that he had knowingly exposed his partners to HIV.

We fear that the amendment to the law would deter individuals from testing for HIV because they could be prosecuted for criminal HIV transmission if they learn their status. Earlier versions of the bill would have allowed access to social service agency and counseling records; AFC and allies were able to remove this provision, which would have had a chilling impact on testing and risk-reduction counseling.

AFC and our partners, ACLU of Illinois and AIDS Legal Council of Chicago, were able to negotiate significant changes to the underlying law in return for not working against the provision that allowed access to medical records. The changes we made are below. This bill:

1. Requires that prosecutors prove that an individual specifically intended to transmit HIV to another individual – This is an increased legal standard that prosecutors must meet and consider before bringing criminal charges.

2. Limits acts of transmission to only “sexual activity without the use of a condom” – Prosecutors cannot charge individuals for activities that will not transmit HIV, such as biting or spitting.

3. Defines the term “sexual activity” to include only sexual acts that include insertive vaginal or anal intercourse – This means no more criminal transmission cases for oral sex or kissing.

4. Exemption from prosecution if a condom is wore during sexual activity – No more criminal charges if a person uses a condom.

Although the amended law significantly narrows the situations that could result in prosecution for criminal transmission, these cases are likely to always involve “he said he said” or “she said” cases that happen between the sheets with no witnesses.

It will be one person’s word against the other to determine if the couple used a condom and which sex acts they engaged in. Cases will hinge on whether the infected partner disclosed his or her HIV status before having sex. Too often, former partners press charges for criminal transmission as retaliation when a relationship has soured.

The bill does include an important protection against prosecutorial abuse. Judges must approve all requests for medical records, and the judge reviews records and determines if they are before they are turned over to prosecutors. However, AFC and other advocates will remain vigilant to ensure that abuses do not occur.

The bill has been sent to Gov. Pat Quinn who will likely sign the bill into law. According to the Center for HIV Law and Policy, 32 states and two U.S. territories have HIV criminal transmission laws. The bill strikes an apprehensive compromise between HIV advocates and law enforcement. While the bill is an improvement, it still contains problematic sections. AFC will continue to monitor the law once it is enacted, and look for opportunities to repeal it altogether.

Press Conference (AIDS 2012)

HIV Criminalization – An Epidemic Of Ignorance?

Laws and prosecutions that single out people with living with HIV are ineffective, counterproductive and unjust.

As delegates from around the world met in Washington DC at AIDS 2012 to discuss how to “end AIDS” through the application of the latest scientific advances, this press conference highlighted how laws and policies based on stigma and ignorance are not only creating major barriers to prevention, testing, care and treatment, but also seriously violating the human rights of people living with HIV.

Hosted by (in alphabetical order): The Center for HIV Law & Policy / Positive Justice Project, United States; Global Network of People Living with HIV (GNP+), Netherlands; HIV Justice Network, United Kingdom/Germany; INA (Maori, Indigenous & South Pacific) HIV/AIDS Foundation, New Zealand; The SERO Project, United States; Terrence Higgins Trust, United Kingdom; UNAIDS, Switzerland.

Chaired by Paul de Lay, Deputy Executive Director, UNAIDS, Switzerland

Speakers:

– Nick Rhoades, HIV criminalization survivor, United States [from 03:28]
– Marama Pala, former complainant, New Zealand [from 09:15]
– Edwin J Bernard, Co-ordinator, HIV Justice Network/Consultant, GNP+ [from 14:35]
– Laurel Sprague, Research Director – SERO, United States [from 23:15]
– Lisa Fager Bediako, Congressional Black Caucus Foundation/ Positive Justice Project, United States [from 33:10]

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

HIV prosecutions: global ranking (AIDS 2012)

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

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

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

Updated abstract based on final data

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

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

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

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

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

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

U.S. Rep. Barbara Lee (Sero, US, 2012)

U.S. Representative Barbara Lee has long been a champion in the US Congress for people with HIV. Here she discusses H.R. 3053, the Repeal HIV Discrimination Act, which would require states to review their HIV criminalisation statutes with incentives to modernise them to reflect contemporary science.

This short film is part of Sero’s ongoing documentation of the experiences of people with HIV who have been prosecuted for “HIV crimes”. Visit Sero’s video pages for a growing collection of video interviews.

Norway: First gay man to be prosecuted goes public, makes a real difference (corrected)

Correction: Louis Gay tells me that he is not the first gay man to be prosecuted in Norway.

I am the first one to be prosecuted for practicing “safer sex” (oral sex, only. with no condom and no contact with sperm or precum), without transmitting any virus!

Original post: Yesterday, Bent Høie (Conservative), the leader of the Standing Committee on Health and Care Services, raised the issue of HIV in the Norwegian Parliament (Stortinget). He was concerned about the rise in new diagnoses in the country, and discussed increases in unprotected sex amongst gay men and other men who have sex with men, as well as lack of knowledge of HIV and HIV-related stigma within broader Norwegian society.

Notably, he linked these concerns with Section 155 of the Norwegian Penal Code. This infectious disease law enacted in 1902 is known as the ‘HIV paragraph’ since it has only ever been used to prosecute sexual HIV exposure or transmission. By placing the burden on HIV-positive individuals to both disclose HIV status and insist on condom use, the law essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status, and consents. There is no distinction between penalties for HIV exposure or transmission. Both “willful” and “negligent” exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for “willful” exposure or transmission and three years for “negligent” exposure or transmission.

The law is currently in the process of being revised by the so-called Syse-committee (named after its chair, Professor Syse but officially titled The Norwegian Law Commission on penal code and communicable diseases hazardous to public health), but at the moment, the current law stands. At least seventeen individuals have been prosecuted since 1999 – and until this year all prosecutions were as a result of heterosexual sex despite the fact that most HIV transmission in Norway is the result of sex between men.

Earlier this year, Norwegian prosecutors decided to prosecute the first gay man under this draconian law. Although transmission had been alleged, phylogenetic analysis ruled out Louis Gay’s virus as the source of the complainant’s infection. Still, he is being prosecuted for placing another person at risk despite the only possible risk being unprotected oral sex, and despite Louis disclosing his HIV-positive status prior to any sex (which the complainant denies).

Louis decided to go public in November 2011 during the initial police investigation. Since then he has given interviews to some of the largest circulation newspapers and magazine in Norway, as well as to national TV and radio. I had the pleasure of meeting Louis in Oslo in February when he addressed the civil society caucus that produced the Oslo Declaration.

As well as his own blog, Louis now also blogs about his experience for POZ.com. In his second post he notes that

I chose to go public before any final decision was made from the State attorney office, with the chance of provoking them to prosecute me because they don’t want to risk being criticized by media of giving in to pressure. This is fine with me. Like I’ve stated before I want to have my case tried before a court. Anyway! Now we all have to wait until the trial before we get any further answers about my case. In the meantime the discussion whether we should have a law like this (and using it like in my case) is protecting the society from more infections or just making it worse, continues.

So, yesterday, Louis’s brave stand paid off. Conservitive MP Bent Høie, the leader of the Standing Committee on Health and Care Services, mentioned Louis’ case in Stortinget.

Then it is a paradox that the social-liberal Norway still has an HIV-paragraph that is criminalizing HIV-positive people’s sexuality. This has now been brought to a head by the public prosecutor who has brought charges against HIV-positive Louis Gay, who has not infected any other person and who conducted what we call “safer sex”, which in reality is the health authorities’ recommendations. I am aware that Syse-committee is now working on this issue, but it is still necessary to highlight this in this debate, because current criminal law works against prevention strategy and stigmatize HIV-positive people. I hope that today’s debate could be the start of that we again have a strong political commitment to reducing new infections of HIV and to improve the lives of those who are HIV-positive – which in reality are two sides of the same coin.”

(Unofficial translation by Louis Gay)

I’m so impressed with Louis’s courage and determination, and I think that he actually might just be making a difference by going public. If you support Louis, let him know by leaving a comment here, or on his own blog, or at POZ.com.