The fourth episode of HIV Justice Network’s web show, HIV Justice Live! that streamed live on July 14 is now available to watch on YouTube. The episode, which our colleagues at the HIV Legal Network called a “master class in advocacy” discussed the newly launched UNDP’s Guidance for Prosecutors on HIV-related criminal cases and provided insights into how to work with prosecutorial authorities so that they have a clear understanding of how to – and more importantly how not to – use HIV criminalisation laws.
Guidance like this is a good example of a ‘harm reduction’ approach if you can’t change or repeal HIV criminalisation laws, and adopting such guidance can result in fewer miscarriages of justice, as well as improve the criminal legal system’s understand of, and approach to, people living with HIV. Once implemented it’s also a good way of holding prosecutors to account.
The Guidance was developed for UNDP by our HIV JUSTICE WORLDWIDE colleagues, Richard Elliott and Cécile Kazatchkine of the HIV Legal Network. The process, which took two years, involved multiple consultations. Several other colleagues, including HJN’s Executive Director Edwin J Bernard, HJN Supervisory Board member Lisa Power, and HJN Global Advisory Panel member Edwin Cameron were part of the Project Advisory Committee.
The episode, hosted by Edwin J Bernard and featuring UNDP’s Kene Esom alongside Lisa Power and Richard Elliott, also included a special edit of HJN’s documentary, “Doing HIV Justice”, which demystifies the process of how civil society worked with the Crown Prosecution Service of England and Wales to create the world’s first policy and guidance for prosecuting the reckless or intentional transmission of sexual infection.
The full-length, 30-minute version of this documentary is now available as part of a YouTube playlist that also features two other educational and informative videos: an introduction by the CPS’s Arwel Jones with some useful tips about how to engage with prosecutors, and a workshop that took place after the world premiere screening in Berlin, featuring Lisa Power and Catherine Murphy (who helped advocate for the implementation of guidance in England & Wales, and Scotland, respectively) as well as former UNAIDS Senior Human Rights and Law Adviser, Susan Timberlake.
HIV criminalisation presentations and posters at AIDS2020
There were a number of presentations, mostly e-posters, at AIDS2020:Virtual that focused on HIV criminalisation. We have compiled them all below given that access was (and remains) limited.
The only oral presentations specifically covering HIV criminalisation were delivered by HIV Justice Network’s Executive Director, Edwin J Bernard, presenting in three pre-recorded video sessions.
Below you will find the presentation ‘Bringing Science to Justice’ for the IAPAC 90-90-90 Targets Update, produced for the session, ‘Creating Enabling Environments for Optimal HIV Responses’. This eleven minute presentation, that also includes a number of video clips, covers the following:
The detrimental implications of HIV criminalisation on human rights and public health
The impact of the ‘Expert consensus statement on the science of HIV in the context of criminal law’
Lessons learned from HIV criminalisation on punitive responses to COVID-19
Conclusion: It is more critical than ever to commit to, and respect, human rights principles; ground public health measures in scientific evidence; and establish partnerships, trust, and co-operation between scientists, law- and policymakers and the most impacted communities.
Update (29 July): During a California HIV/AIDS Policy Research Centers virtual satellite session, Dr. Ayako Miyashita Ochoa of UCLA Luskin School of Public Affairs, Department of Social Welfare, interviewed activist Marco Castro-Bojorquez about the modernisation of California’s HIV-specific criminal law as an example of of evidence-based policymaking.
There were a number of poster presentations that also focused on HIV criminalisation in the following countries/jurisdictions:
PEF 1737 United States
PEF 1738 England & Wales
PEF 1739 Australia
PEF 1740 Niger
PEF 1742 Malawi
PEF 1781 Florida, USA
PEF 1794 Uganda
PEF 1841 Taiwan
The abstracts are below. Click on the title to download the pdf of the poster.
BACKGROUND: In 2017, 36 states had laws penalizing persons with HIV (PWH) for sexual or no-risk behavior (e.g., spitting). Research shows these laws do not impact sexual risk behaviors or diagnosis rates. Citizens likely are unaware of these laws; we do not expect direct behavioral effects. However, laws reflect states’ values and may mirror community attitudes towards PWH. Understanding how structural factors relate to stigma is important for stopping HIV stigma. METHODS: National HIV Behavioral Surveillance used venue-based sampling methods to interview men who have sex with men (MSM) in 23 U.S. cities from June-December 2017. Using Center for HIV Law and Policy reports, we categorized states’ HIV-specific laws as of June 2017. We compared MSM”s perceptions of community attitudes towards PWH between MSM living in states with versus without HIV laws. We obtained adjusted prevalence ratios using log-linked Poisson models assessing the relationship between law and four community stigma attitudes (discrimination, rights, friendship, punishment), which we then compared between black MSM in states with versus without laws. RESULTS: Two-thirds of MSM lived in states with HIV-specific laws. MSM in states with laws were more likely to report black race (38% versus 15%), poverty (23% versus 12%), or incarceration (25% versus 19%). Multivariable models found laws were related to perceived community beliefs that PWH “got what they deserved” (aPR=1.13, 95% CI: 1.03-1.24), but not other attitudes. Compared to black MSM in states without laws, black MSM in states with laws were more likely to believe persons in their community would discriminate against PWH (64% versus 50%), not support PWH’s rights (25% versus 16%), not be friends with PWH (24% versus 13%), and believe HIV was deserved punishment (32% versus 22%). CONCLUSIONS: MSM in states with HIV laws were disproportionately from marginalized groups. Laws were related to perceived community attitudes that HIV was deserved punishment; understanding specific stigma attitudes can inform interventions. Although black MSM reported high community stigma overall, stigma was significantly higher for black MSM in states with HIV laws. States may consider repealing or reforming HIV laws and focusing on effective prevention efforts to End the HIV Epidemic.
BACKGROUND: In England and Wales it is possible to be prosecuted for the sexual transmission of infection under the Offences Against the Person Act 1861 or the Criminal Attempts Act 1981. After the first prosecutions in 2003, National AIDS Trust (NAT) successfully advocated for legal guidance for prosecutors and worked with the Crown Prosecution Guidance (CPS) to develop this. DESCRIPTION: In 2018 NAT requested that the guidance be updated. In January 2019 the CPS shared a draft of their revised guidance with NAT, who then coordinated a joint response from NAT and other key stakeholders. This successfully ensured that the new guidance reflects medical developments such as Undetectable=Untransmittable and clinical guidance. Developments in case law have led the CPS to take the view that HIV/STI status deception may be capable of vitiating consent to sex. NAT is concerned that this could result in people who lie about their HIV status being prosecuted for rape or sexual assault, even with safeguards used and no transmission occurring. NAT prepared a briefing articulating legal, policy and public health arguments against this position, and presented it at a meeting with the CPS. As a result the CPS have added several caveats, but we still believe their position to be unacceptable and discussions are ongoing. LESSONS LEARNED: The successes we have had in improving the guidance demonstrate the importance of long-standing proactive engagement, relationship-building and collaboration. Collaborating with a range of key stakeholders including clinicians and lawyers enabled NAT to leverage wider authority and expertise. However, the issue of HIV status deception has illustrated the implications for HIV of legal developments in related but not directly transferable areas. Confidence in our understanding of the law and persistence in making our arguments heard has been crucial in ensuring ongoing engagement on this issue. CONCLUSIONS: The updated guidance will help to ensure that prosecutions for reckless or intentional transmission are conducted in a way that minimises harm to both individuals and the wider community. Regarding the issue of HIV status deception, possible next steps include securing parliamentary engagement, pro bono legal opinions, and further representations from local government and public health bodies.
BACKGROUND: A significant portion of people convicted of HIV transmission in Australia are not Australian citizens. Due to not holding citizenship, those convicted of serious criminal offences (which includes facing a prison term of 12 months or more), are at risk of having their visas cancelled and being removed from Australia. The HIV/AIDS Legal Centre (HALC) has represented a number of these clients in both their criminal and subsequent immigration proceedings to assist these clients in preventing their removal from Australia. DESCRIPTION: Where a person is not an Australian citizen and commits a criminal offence they are at risk of detention and removal from Australia. In two recent case studies of people with HIV convicted of HIV transmission, following the completion of their custodial sentences steps were then taken to cancel their visas and place them into immigration detention. Both clients had their visas cancelled and had to take steps to appeal the decisions. Part of the reason for the cancellation was the perception of ongoing risk to the Australian community. Neither client had been convicted of intentionally transmitting HIV to their sexual partner. HALC continues to represent one of the clients mentioned and the other has now exhausted all appeal options. LESSONS LEARNED: There are often many and varied reasons for HIV non disclosure and, from HALC”s experiences, following criminal and public health interventions it is unlikely that a person with HIV would continue to place their sexual partners at risk of contracting HIV. Decision makers in migration proceedings appear to be unwilling to accept that a person with HIV would no longer place their sexual partner at risk of HIV transmission as the decision makers note in their decisions that they there remains a risk to the community. CONCLUSIONS: The outcomes of these cases demonstrates the need for ongoing advocacy and law reform in the removal of offences for HIV non-disclosure, exposure and transmission, except where actual intent can be established to a criminal law standard. The cases also demonstrate the ongoing need for continued robust representation of those, often vulnerable migrants, who are facing visa cancellation.
BACKGROUND: To effectively fight against HIV, Niger adopted Law No. 2007-08 of April 30, 2007 related on HIV prevention, care and control. This law included problematic provisions, including the criminalization of exposure, HIV transmission, and the non-disclosure of HIV to the sexual partner. Actually, PLWHIV continue to be victims of the application of the provisions criminalizing the transmission of HIV through several criminal prosecution cases in 2017. DESCRIPTION: In June 2018, 13 civil society organizations created the “National Coalition for the Decriminalization of HIV in Niger”. This one benefited from the technical and financial support of HIV JUSTICE WORLDWIDE. Its advocacy objectives, by 2021, are to : repeal of offenses criminalizing exposure and transmission of HIV ; research and disseminate reliable and convincing data on the impact of HIV criminalization on access to HIV-related services. Since its creation, the Coalition has carried out the following activities: National workshop for consulting civil society stakeholders on the exposure, transmission and non-disclosure of HIV in Niger; The development of the Memorandum of December 20, 2018 entitled ‘exploring ways and means to resolve the problems of legal proceedings against people living with HIV in order to reduce to zero the new infections, deaths and discrimination linked to AIDS; Organization of several advocacy meetings during the ‘zero discrimination’ day (March, 2019) for public decision-makers and partners. LESSONS LEARNED: Judicial police officers and magistrates have to exercise greater caution when considering a criminal prosecution, and in particular, carefully assess the latest scientific data on the risks of transmission and the consequences of the infection; National AIDS Control Program needs a comprehensive assessment of the application of criminal legislation on the transmission, exposure and non-disclosure of HIV status in order to measure its impact on the effectiveness of national response. CONCLUSIONS: The criminalization of HIV transmission undermines public health efforts and does not take into account the reality of PLWHIV and especially women who are not always able to disclose their HIV status without fear of reprisals or violence, or to impose the wearing a condom. The threat of possible criminal prosecution only increases their vulnerability.
BACKGROUND: Building on the work of the Global Commission on HIV and the Law, and in order to promote an enabling environment for achieving the 90-90-90 targets, UNDP has supported regional-and national-level work on removing legal barriers to accessing HIV services in sub-Saharan Africa. Covering over 20 countries, this work consists of regional-level capacity building for duty-bearers and rights-holders from the different countries and in-country activities tailored to local realities. DESCRIPTION: In 2019/20, we evaluated the impacts of this work through a review of project documents and key informant interviews with stakeholders including civil society representatives, government officials, and UNDP staff, and conducted an in-depth case study in Malawi. LESSONS LEARNED: Participation in regional spaces empowered national-level stakeholders in their country level work. A participatory legal environment assessment (LEA), jointly owned by government and civil society, served as the starting point and the resulting document, providing an overview of the strengths and weaknesses of HIV-related national laws and policies, has served as a cornerstone for subsequent activities. For example, national advocacy efforts informed by the LEA, and participation by the Chair of the Parliamentary Committee on HIV in regional activities, were key to shaping a revised HIV law to better align with international human rights law. The new law has led to the reform of the institutional framework for the national HIV response. Judges participated in regional judges’ fora where they could request information on HIV-related science, discuss lived experiences with key populations’ representatives and hear about how legal issues were being addressed across the region. Lawyers from across the region took part in joint training. After one such training, and with technical support from regional partners to create a strong case, a lawyer chose to appeal the conviction of a woman under Malawi’s law criminalizing HIV transmission. The presiding judge had attended regional judges’ fora and, drawing on a firm understanding of HIV transmission dynamics, overturned the original ruling. CONCLUSIONS: A mix of regional and national level activities allows for tailoring of activities to national contexts while also providing space for peer networking and support where ‘difficult’ issues might more easily be discussed.
BACKGROUND: According to the Centers for Disease Control and Prevention (CDC), as of 2016, 108,003 people live with HIV (PLHIV) in Florida, which also has the highest rates of new HIV diagnoses in the country. Numerous complexities worsen Florida’s HIV risk environment, including sex work, human trafficking, injection drug use, and sex tourism. These topics are often bases for HIV-related arrests that journalists cover. HIV criminalization describes statutes that criminalize otherwise legal conduct or that enhance penalties for illegal conduct based on a person’s positive HIV status. METHODS: This study employed a systematic review of Florida news articles on HIV-related arrests published between 2009-2019. Through qualitative content analysis, our study analyzed how race, gender, and journalistic tone coalesce in reports of HIV-related arrests. RESULTS: A 2018 report from the Williams Institute indicated that white Floridian women are primarily arrested for HIV-related crimes. The systematic review found zero news reports on HIV-related arrests of white Floridian women, and only one article identified a female perpetrator whose race was undisclosed. Sixty-four other articles reported solely on the HIV-related arrests of men, predominantly black men. We identified two categories of articles where HIV was either central to the arrest, or the person’s HIV-positive status was reported but exhibited little pertinence to the arrest. CONCLUSIONS: Journalistic and police reporting behaviors risk inadvertently stigmatizing PLHIV at a time when public awareness of HIV depends on perceptions of HIV. This information will be used to shape equitable local nonprofit campaigns for community prevention, and HIV decriminalization efforts, while also combating the perpetuation of HIV misinformation.
BACKGROUND: The purpose of the research: To assess the compliance of the Uganda HIV and AIDS Control and Prevention Act, 2014 (the Act) with international human rights law standards.
Problem: In 2014, the Government of Uganda enacted a law to control and prevent HIV and AIDS. However, human rights advocates contest that the law contains provisions that don”t comply with international human rights law standards. METHODS: Study period: August 2014 – August 2015 Study design: Qualitative design. Data collection: The study used a document analysis method. Method of analysis: The study identified international human rights law standards related to HIV and AIDS and used them as benchmarks for the review, analysis and synthesis of the literature. RESULTS: The study established that: The Act carries provisions that comply with international human rights law standards. These include HIV counselling, testing, and treatment; state responsibility in HIV and AIDS control; the establishment of the HIV and AIDS Trust Fund; HIV-related human biomedical research; and prohibition of discrimination in various settings on grounds of HIV status. The Act also contains provisions that are not compliant with international human rights law standards. These include mandatory HIV testing, disclosure without consent, criminalization of actual and attempted HIV transmission, and criminal penalties for vaguely defined conduct. The Act lacks provisions that would make it more effective in controlling and preventing HIV and AIDS. These include commitments by the state to be accountable for its obligations stated in the Act; definition of what constitutes discrimination in various settings; and addressing challenges such as the causes of discrimination, inadequate professional human resources at health facilities, lack of HIV-friendly services in health facilities, and unregulated informal sector in complying with the law. CONCLUSIONS: The study identified the compliance and non-compliance of the Act to international human rights law standards. It made recommendations to the Government of Uganda, organisations of people living with HIV and AIDS, organisations that advocate for human rights, and national human rights institutions, on the need to eliminate, revise and add some provisions in the Act to create an enabling legal environment that conforms with international human rights law.
BACKGROUND: Taiwan ranks top amongst the most progressive Asian countries, including being the first to pass marriage equality in Asia. Yet, stigma and discrimination of certain sub-populations, specifically people living with HIV (PLHIV) continue to prevail, as reflected in the Article 21 of HIV special law which overly criminalizes HIV non-disclosure, exposure and transmission. METHODS: Using qualitative and quantitative approaches, Persons with HIV/AIDS Rights Advocacy Association (PRAA) of Taiwan makes a case on how the current criminal justice system in Taiwan adapt the narrative of ‘HIV as a weapon’ to prevent PLHIV from asserting their rights. RESULTS:Article 21 states that individuals with knowledge of their HIV-positive status, by concealing the fact, engage in unsafe sex with others or share injection syringes, diluted fluids, and thus infect others, shall be sentenced for 5 to 12 years. Data showed over 30 cases were identified from 2012 to 2019, the majority of prosecutions were associated with sexual activities. However, unsafe sex was often defined exclusively with use of condom, and the court rarely recognized scientific advancements in antiretroviral therapy and suppressed viral load. Cases included: prosecution from ex-partner whom knew defendant’s HIV status before their relationship; state prosecution without plaintiff by turning 14 HIV-positive witnesses into defendants; 13-year incarceration despite medical expert’s testimony on the unlikelihood of HIV transmission. Those who haven’t been prosecuted continued to face both physical and emotional health threats, such as a woman threaten by her admirer to disclose her status if she turns him down. Bias and prejudice, worsen by difficulties in proving self-disclosure or condom use commonly resulted in convictions. CONCLUSIONS:Article 21 and out-of-date judicial interpretation of HIV transmission risks gravely deprive the rights of PLHIV and further perpetuates stigma against PLHIV and affected communities through special criminal law on HIV. There’s a strong case to be made for abolishing Article 21 under the Constitution of Taiwan and the International Bill of Human Rights. Training and support on HIV advancements shall be given to all members of judicial and criminal law system to further inform any application of criminal law in cases related to HIV.
UNAIDS “extremely concerned” by new COVID-19 laws that target people living with or vulnerable to HIV
This week, echoing the concerns of the HIV JUSTICE WORLDWIDE Steering Committee, amongst others, UNAIDS issued a strongly worded press release condemning governments for abusing the current state of emergency over the COVID-19 pandemic for overreaching their powers and enacting laws that target people who are living with, or vulnerable, to HIV.
“In times of crisis, emergency powers and agility are crucial; however, they cannot come at the cost of the rights of the most vulnerable,” said Winnie Byanyima, Executive Director of UNAIDS. “Checks and balances that are the cornerstone of the rule of law must be exercised in order to prevent misuse of such powers. If not, we may see a reversal of much of the progress made in human rights, the right to health and the AIDS response.”
Notably, UNAIDS singles out EU member states, Hungary and Poland.
In Hungary, a new bill has been introduced to remove the right of people to change their gender and name on official documents in order to ensure conformity with their gender identity, in clear breach of international human rights to legal recognition of gender identity.
In Poland, a fast-tracked amendment to the criminal law that increases the penalties for HIV exposure, non-disclosure and transmission to at least six months in prison and up to eight years in prison has been passed—a clear contravention of international human rights obligations to remove HIV-specific criminal laws.
In addition, UNAIDS condemns overly zealous policing that is especially targeting key populations already stigmatised, marginalised, and criminalised.
UNAIDS is also concerned by reports from a number of countries of police brutality in enforcing measures, using physical violence and harassment and targeting marginalized groups, including sex workers, people who use drugs and people who are homeless. The use of criminal law and violence to enforce movement restrictions is disproportionate and not evidence-informed. Such tactics have been known to be implemented in a discriminatory manner and have a disproportionate effect on the most vulnerable: people who for whatever reason cannot stay at home, do not have a home or need to work for reasons of survival.
They also highlight Kenya as a model of cjvil society rapid response to human rights concerns following the release of an advisory note “calling for a focus on community engagement and what works for prevention and treatment rather than disproportionate and coercive approaches.”
The statement concludes:
While some rights may be limited during an emergency in order to protect public health and safety, such restrictions must be for a legitimate aim—in this case, to contain the COVID-19 pandemic. They must be proportionate to that aim, necessary, non-arbitrary, evidence-informed and lawful. Each order/law or action by law enforcement must also be reviewable by a court of law. Law enforcement powers must likewise be narrowly defined, proportionate and necessary.
UNAIDS urges all countries to ensure that any emergency laws and powers are limited to a reasonable period of time and renewable only through appropriate parliamentary and participatory processes. Strict limits on the use of police powers must be provided, along with independent oversight of police action and remedies through an accountability mechanism. Restrictions on rights relating to non-discrimination on the basis of HIV status, sexual and reproductive health, freedom of speech and gender identity detailed above do not assist with the COVID-19 response and are therefore not for a legitimate purpose. UNAIDS calls on countries to repeal any laws put in place that cannot be said to be for the legitimate aim of responding to or controlling the COVID-19 pandemic.
Yesterday, the House of Commons Standing Committee of Justice and Human Rights released a ground-breaking report “The Criminalization of HIV Non-Disclosure in Canada” recommending that the Government of Canada works with each of the Canadian provinces and territories to end the use of sexual assault law to prosecute allegations of HIV non-disclosure.
People living with HIV currently face imprisonment for aggravated sexual assault and a lifetime designation as a sex offender for not disclosing their HIV status to sexual partners, even in cases where there is little or even zero risk of transmission. This means a person engaging in consensual sex that causes no harm, and poses little or no risk of harm, can be prosecuted and convicted like a violent rapist. We welcome the Committee’s recognition of this unjust reality and their call to end the use of sexual assault laws. We and our allies have spent many years advocating for this critical change.
The report also recommends that Canada limits HIV criminalisation to actual transmission only. The Legal Network notes:
But we must go further: criminal prosecution should be limited to cases of intentional transmission as recommended by the UN’s expert health and human rights bodies. Parliament should heed such guidance. Criminal charges and punishments are the most serious of society’s tools; their use should be limited and a measure of last resort.
However, one of the recommendations that the Legal Network takes issue with is the recommendation to broaden any new law to include other infectious diseases.
Infectious diseases are a public health issue and should be treated as such. We strongly disagree with the recommendation to extend the criminal law to other infectious diseases. We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.
Currently, there is a patchwork of inconsistent approaches across each province and territory. Only three provinces — Ontario, British Columbia and Alberta — have a formal policy in place or have directed Crown prosecutors to limit prosecutions of HIV non-disclosure, and they all fall short of putting an end to unjust prosecutions.
A December 2018 federal directive to limit HIV criminalisation, which solely applies to Canada’s territories, is already having some impact — in January 2019 it led to Crown prosecutors in the Northwest Territories dropping a wrongful sexual assault charge against a man living with HIV in Yellowstone. “We followed the directive and chose not to prosecute,” said Crown attorney Alex Godfrey.
Other positive recommendations in the report include:
An immediate review of the cases of all individuals who have been convicted for not disclosing their HIV status and who would not have been prosecuted under the new standards set out in the recommendations of the Committee.
These standards must reflect “the most recent medical science regarding HIV and its modes of transmission and the criminal law should only apply when there is actual transmission having regard to the realistic possibility of transmission. At this point of time, HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission.”
The report also recommends that any new legislation should be drafted in consultation with “all relevant stakeholders including the HIV/AIDS community”, which the Legal Network also welcomed.
The next step is actual law reform. The report makes clear that change to the criminal law is needed. Any new legal regime must avoid the harms and stigma that have tainted the law these past 25 years.
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.
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
Addressing the detrimental health and human rights impacts of criminal laws
People have a fundamental human right to make decisions about their lives and bodies. These rights relate to personal choices on, among other things, health care and treatment. For sexual and reproductive rights, key issues include the right of people to decide when, whether and with whom to have sex, to have children and to get married and their ability to express their gender and sexuality.
Leading legal experts from around the world recently met to lay the foundations for a set of principles to address the misuse and abuse of criminal laws that affect basic human rights and impact on health and equality. The principles will be developed in the coming months and will guide civil society and policy-makers in the development and use of laws that guarantee human rights and protect public health.
Tim Martineau, UNAIDS Deputy Executive Director, Programme, a.i., noted at the outset of the meeting that, “While there is significant progress in HIV prevention, treatment and care, there is a big discrepancy in HIV prevention in relation to key populations, who are more vulnerable to HIV infection in many respects because of a lack of legal protection and the unjust criminalization of their behaviour.”
The legal experts focused on criminalization related to sexuality, reproduction, personal drug use and the overly broad criminalization of HIV non-disclosure, exposure and transmission. Around the world, same-sex sexual practices are criminalized in 73 countries, with 13 states imposing the death penalty. Sex work is criminalized in approximatively 116 countries globally and some 72 countries criminalize HIV non-disclosure, exposure or transmission. Criminal laws often increase stigma against already marginalized and excluded groups and have been linked to discrimination and the denial of critical health services. Criminalization also creates an environment in which people are less likely to seek police assistance when their rights have been violated.
Kate Gilmore, the United Nations Deputy High Commissioner for Human Rights, emphasized that the criminal law plays an essential role in the recognition, protection and enforcement of rights, including by tackling impunity for violations of those rights. “Our purpose here is to raise the shield of criminal law by lowering its sword, ensuring better protection through criminal law by reducing the abuse of it.”
Sam Zarifi, the Secretary General of the International Commission of Jurists, said, “The misuse of the criminal law affects the most marginalized people and, in particular, the dispossessed and disenfranchised.”
The meeting was held on 3 and 4 May and was led by the International Commission of Jurists, in partnership with UNAIDS and the Office of the United Nations High Commissioner for Human Rights.
Published on UNAIDS site on May 8, 2018
Lawyers for HIV and TB Justice 2018 Training (Johannesburg, 2018)
This playlist contains recordings of a training for lawyers on strategic litigation, legal defense and advocacy on HIV and TB justice from 20-23 February 2018 in Johannesburg, South Africa by the Southern Africa Litigation Centre (SALC), HIV Justice Worldwide, the Joint United Nations Programme on HIV/AIDS (UNAIDS), the Stop TB Partnership, the AIDS and Rights Alliance for Southern Africa (ARASA), and the Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN). The training was funded under the Africa Regional Grant on HIV: Removing Legal Barriers. Resources and more information on the training are available here: http://www.southernafricalitigationce… With thanks to Nicholas Feustel of Georgetown Media.
Mexico: The Mexican Secretary of Health should avoid discriminatory terminology and focus on stopping the criminalisation of people with HIV, state activists
By using the word “contaminated” the Mexican Secretary of health has committed a crime, state activists
When using the word “contaminated” against patients with the Human Immunodeficiency Virus (HIV), the Secretary of Health Arturo Iran Suárez Villa committed a crime by using a term not compliant with the official Mexican regulation 010, revealed in a position statement the Mexican Network of Organizations against the Criminalization of HIV, composed of 32 civil society organizations and member of the HIV Justice Worldwide initiative.
In support, they said that it is unacceptable for a Secretary of Health to refer to people with HIV as contaminated.
“In accordance with the methods, principles and criteria of operation of the components of the National Health System enunciated in the MEXICAN OFFICIAL REGULATION NOM-010-SSA2-2010, FOR THE PREVENTION AND CONTROL OF INFECTION BY HUMAN IMMUNODEFICIENCY VIRUSES, instruments, tissues, blood are contaminated but not people. The word is discriminatory and, in Mexico, it is a crime, “they said.
For this reason, they urged him to consult the Reference Document. UNAIDS Terminology Guidelines (UNAIDS 2015), to familiarise himself with the correct terms to be used when talking about HIV and AIDS.
“The concern of Dr. Suárez Villa – as head of the sector – should focus on avoiding any form of criminalization of people with HIV in Veracruz, since these contravene the International Guidelines on HIV / AIDS and Human Rights (UNAIDS, 2016), as it is embodied in article 159 of the Code, “they indicated.
It should be noted that HIV Justice Worldwide is an initiative composed of national, regional and global civil society organizations, working together to end the criminalization of HIV.
The founding partners are: AIDS Rights Alliance for South Africa (ARASA); Canadian Legal HIV / AIDS Network; Global Network of People Living with HIV (GNP +), HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women Network-USA. (PWN-USA); and Sero Project (SERO). The initiative is also supported by Amnesty International, the International HIV / AIDS Alliance, UNAIDS and UNDP.
Con vocablo “contaminado”, incurrió Suárez Villa en un delito: activistas
Al usar la palabra “contaminado” contra los pacientes con el Virus de Inmunodeficiencia Humana (VIH), el Secretario de Salud Arturo Irán Suárez Villa incurrió en un delito al usar un término no aceptado por la Norma Oficial Mexicana 010, revelaron en un posicionamiento la Red Mexicana de Organizaciones contra la Criminalización del VIH, conformada a su vez por 32 organizaciones de la sociedad civil y suscrita a la iniciativa HIV Justice Worldwide1.
En su sustento, dijeron que es inaceptable que un Secretario de Salud se refiera a las personas con VIH como contaminados.
“De acuerdo con los métodos, principios y criterios de operación de los componentes del Sistema Nacional de Salud enunciados en la NORMA OFICIAL MEXICANA NOM-010-SSA2-2010, PARA LA PREVENCION Y EL CONTROL DE LA INFECCION POR VIRUS DE LA INMUNODEFICIENCIA HUMANA, se contaminan los instrumentos, los tejidos, la sangre pero no las personas. La palabra es discriminatoria y, en México, es un delito” indicaron.
Por lo que le exhortaron a consultar el Documento de Referencia. Orientaciones Terminológicas de ONUSIDA (ONUSIDA 2015), para que se familiarice con los términos correctos a usarse que cuando se habla del VIH y del sida.
“La preocupación del doctor Suárez Villa –como cabeza de sector– debería enfocarse en evitar cualquier forma de criminalización a las personas con VIH en Veracruz, ya que estas contravienen las Directrices Internacionales sobre VIH/sida y los Derechos Humanos (ONUSIDA, 2016), tal y como se encuentra plasmado en el artículo 159 del Código” indicaron.
Cabe destacar que HIV Justice Worldwide (Justicia por VIH en todo el mundo) es una iniciativa compuesta por organizaciones de la sociedad civil nacionales, regionales y mundiales, trabajando en conjunto para terminar con la criminalización del VIH.
Los socios fundadores son: SIDA y Alianza por los Derechos para Sudáfrica (ARASA); Red Legal Canadiense de VIH/SIDA; Red Mundial de Personas Viviendo con VIH (GNP+), Red de Justicia para el VIH; Comunidad Internacional de Mujeres Viviendo con VIH (ICW); Red de Mujeres Seropositivas-E.E.U.U. (PWN-USA); y Proyecto Sero (SERO). La iniciativa también es apoyada por Amnistía Internacional, la Alianza Internacional de VIH/SIDA, ONUSIDA y PNUD.
Canada: Ontario will no longer prosecute people who don't disclose their HIV status if they have a suppressed viral load
Ontario to curb prosecution of HIV non-disclosure cases
Crown attorneys will not prosecute cases of HIV-positive people who do not disclose they have HIV if they have had a “suppressed” viral load, or amount of HIV, in their blood for six months.
The Ontario government announced Friday, World AIDS Day, that Crown attorneys will no longer prosecute cases of HIV-positive people who don’t disclose their status to their sexual partner when the person who is HIV-positive has had a suppressed viral load for six months.
Viral load is the amount of the HIV virus in a person’s blood.
The announcement was a response to the federal justice department’s report titled “Criminal Justice System’s Response to Non-Disclosure of HIV,” released Friday.
The report, backed by analysis from the Public Health Agency of Canada, concludes that the criminal law should generally not apply to people who are on HIV treatment (which suppresses their viral load and makes transmission unlikely), are not on treatment, but use condoms, or engage only in oral sex.
“The realistic possibility of a transmission test is likely not met in these circumstances,” the report concludes.
The federal report recognized that HIV “is first and foremost a public health issue,” and concluded that non-disclosure prosecutions disproportionately affect people who are Indigenous, gay and Black.
While the province’s announcement to limit prosecutions was seen as modest progress, a number of organizations quickly pointed out that the government should only be prosecuting cases where there was actual, intentional transmission of HIV.
December 1, 2017 – Ottawa, ON – Department of Justice Canada
The Government of Canada is committed to ensuring that our criminal justice system protects Canadians, holds offenders to account, provides support to victims, meets the highest standards of equity and fairness, and respects the Canadian Charter of Rights and Freedoms.
Today, on World AIDS Day, the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, released the Department of Justice Canada’s report entitled Criminal Justice System’s Response to the Non-Disclosure of HIV. The report represents a significant step forward in raising awareness and addressing concerns about the over-criminalization of HIV non-disclosure in Canada, which can discourage testing and treatment.
The report, developed in collaboration with the Public Health Agency of Canada, reaffirms that HIV is fundamentally a public health issue. It provides a comprehensive review of the most recent medical science on the risks of HIV transmission through sexual activity and shows how the criminal law deals with cases involving the non-disclosure of HIV-positive status prior to sexual activity.
Once a fatal infection, HIV is now considered to be a manageable condition, thanks to significant medical advances in HIV treatment. Sustained treatment substantially improves quality of life and prevents the transmission of HIV.
The report examines stakeholder perspectives, approaches taken in other countries, public health responses to HIV cases, and criminal justice responses to HIV non-disclosure and draws several conclusions from this overview. Together, it informs an evidence-based approach to addressing HIV non-disclosure in the criminal justice system.
The report will provide valuable assistance to the Minister of Justice as she continues to work with her provincial and territorial counterparts on the way forward. Based on its conclusions and observations, she will be reviewing existing charging and prosecution practices leading to the possible development of prosecutorial guidelines for federal prosecutors.
Quotes
“There has been significant progress in the treatment, management and prevention of HIV infection since the first World AIDS Day observed in 1988. I am pleased to release this report today on World AIDS Day. It clearly demonstrates that our criminal justice system must adapt to better reflect this progress as well as current scientific evidence on HIV-AIDS. Our Government is taking action to help reduce the stigmatization of persons living with HIV, including undertaking an evidence-based approach to addressing HIV non-disclosure in the criminal justice system.”
The Honourable Jody Wilson-Raybould, P.C., Q.C., M.P.
Minister of Justice and Attorney General of Canada
“This report is critical to reducing HIV-related stigma in Canada. I will continue to work with my colleague, the Honourable Jody Wilson-Raybould, as well as with people living with HIV to reduce the stigma and discrimination they face, which can be barriers to prevention and treatment.”
The Honourable Ginette Petitpas Taylor, P.C., M.P.
Minister of Health
Quick Facts
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 are often charged with aggravated sexual assault because the non-disclosure is found to invalidate their partner’s consent to engaging in sexual activity in certain circumstances. This is the most serious sexual offence in the Criminal Code.
The criminal law applies to persons living with HIV if they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of HIV transmission.
As stated in the report, current research shows that sexual activity (with or without a condom) with a person living with HIV who is taking treatment as prescribed and has maintained a suppressed viral load (i.e., under 200 copies of HIV per ml of blood) poses a negligible risk of transmission. Across studies to date, there have been no confirmed cases of sexually transmitted HIV to an HIV-negative partner when the HIV-positive partner was continuously on antiretroviral therapy with sustained viral suppression.
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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