US: American Academy of Pediatrics clarifies breastfeeding guidelines for people with HIV

New guidelines clear the way for HIV-positive people to breastfeed

Parents with HIV who want to breastfeed are now able to — with the blessing of their pediatrician — after a game-changing report was released this spring.

The 11-page report, “Infant Feeding for Persons Living With and at Risk for HIV in the United States: Clinical Report” was published in the medical journal Pediatrics in May by Drs. Lisa Abuogi and Christiana Smith, both pediatricians with the University of Colorado School of Medicine, and Dr. Lawrence Noble, a pediatrician at Icahn School of Medicine at Mt. Sinai in New York.

“The American Academy of Pediatrics for the first time is fully supporting breastfeeding for women and other parents with HIV who are on treatment and virally suppressed,” said Dr. Abuogi in a recent virtual interview. “And that’s a result of increasing research showing that it can be done safely and improving antiretroviral regimens that improve the chances of staying virally suppressed.”

She added: “I think it opens up having the choice and having the ability to be supported to do that, which for decades they have not had. So it’s a pretty big sea change that’s happening in the field of HIV.”

The change came as welcome news to Ci Ci Covin, an HIV-positive mother who, because of her status, was devastated not to be allowed to breastfeed her son, Zion, now a teenager. She did, however, breastfeed her 3-year-old daughter Zuri secretively, with the support of clandestine providers who promised not to turn her in to child protective services for planning to breastfeed while living with HIV, something women in other countries have long been able to do.

Now that it doesn’t have to be done in secret, she said, the new guidelines brought a wave of relief.

“It felt like a breath that I was finally able to exhale on,” she said, “that I had been holding in for so many years.”

Breastfeeding with HIV has traveled a long road to acceptance. In 1985, the American Association of Pediatrics recommended parents who were HIV-positive not breastfeed, because of the slim chance of transmission of the infection via the breast milk to the baby. Those choosing to disregard the guidelines could be reported to state child protective agencies.

Others didn’t see the risk in the same way — in some African countries for example, babies were breastfeeding from HIV-positive parents on antiretroviral drugs whose load was so low as to be undetectable while also receiving prophylaxis drugs that blocked the transmission of the virus to the baby; studies there were finding no HIV transmission.

But the U.S. stood fast on its ban — until January 2023, when the National Institutes of Health released a paper “Update to Clinical Guidelines for Infant Feeding Supports Shared Decision Making: Clarifying Breastfeeding Guidance for People with HIV.”

“Clinicians should support the choices of people with HIV to breastfeed (if they are virally suppressed) or to formula/replacement feed,” the paper stated, adding: “It is inappropriate to engage child protective services (CPS) or similar services in response to infant feeding choices of [people with HIV].”

The NIH influenced the Department of Health and Human Services, which that year relaxed its own guidelines against restricting HIV-positive people from breastfeeding, but the HHS has a smaller audience, and it’s the American Association of Pediatrics from whom pediatricians specializing in labor and delivery take their cues, not HHS.

The paper Abuogi and her co-researchers published about a year and a half later was what made the change in the AAP guidelines. Their report, she said, consisted less of original research on the topic and more of a distillation of research. “We review all of the literature, the history, and the latest research to inform the guidelines,” she said.

According to the paper, health care professionals should plan to talk with patients who want to breastfeed their child, and when they do, they should explore the parents’ reasoning, suggest possible alternatives that allow a bond with the infant, and validate the parent’s role, regardless of how the infant will be fed. The paper also recommends that parents know the risk of HIV transmission — which is about 1 percent or less — and are aware that antiretroviral drugs suppress the chance of transmission, but don’t completely eliminate the risk.

“Breastfeeding should be supported for people with HIV who strongly desire to breastfeed after comprehensive counseling,” the paper recommends, “if all of the following criteria are met: (anti-retroviral therapy) was initiated early in or before pregnancy; there is evidence of sustained viral suppression in the parent; the parent demonstrates a commitment to consistently taking their own (anti-retroviral drugs) and to giving infant (anti-retroviral) prophylaxis; and the parent has continuous access (to those drugs).”

The new guidelines are being made widely known through email blasts, the AAP’s podcast, and social media posts to the country’s 39,000 pediatricians who specialize in labor and delivery, about 2,000 of whom practice in Colorado, according to Dr. Aguobi.

Ci Ci Covin, 36, a mother of two who has a bachelor’s and master’s degrees, now lives outside Philadelphia, Pennsylvania, with her partner, son, and daughter. She had been diagnosed with HIV in her early 20s — she said she got the virus having unprotected sex with men growing up in rural Georgia. She didn’t breastfeed her son because she had the virus, and was told she should be happy to give birth at all, given her status.

Her first-born child, Zion, was born premature and spent nine days in the NICU, during which time Covin stayed in a nearby Ronald McDonald House. One day, she recalled, “I stood in that shower with my breasts full of milk and in pain and just watched it all just waste down the drain, knowing that HIV was the only thing that was causing that right now. It was so painful.”

She spiraled into post-partum depression, “beating myself up again for this diagnosis because that was what was stopping me from being able to feed my child … all of my parental autonomy had been taken away from me. That was a rough time.”

Guidelines shared with her by her health care provider kept her from breastfeeding. Over the next few years, she began hearing that women who were living with HIV were breastfeeding in some African countries. About a decade later, she found a new partner and became pregnant again, this time with a baby girl she’d call Zuri, now 3 years old. This time, she wanted things to be different. She had befriended an HIV-positive mother in Virginia for whom things were different: Her new friend Heather’s health care provider had asked her how she wanted to feed her newborn, rather than telling her that her choice was limited so as not to include breastfeeding — a shocking statement to Ci Ci’s ears.

Heather’s disclosure made Covin think she could do the same, so she ran the possibility past her provider. She was shocked by what she was told: There was “no provider in America who would work with me if that’s what I wanted to do,” Coving explained, her voice quivering with emotion.

“And she told me that if that was something that I wanted to do, then I was going to have to be quiet about it because their facility is known to call child protective services on parents who breastfeed while living with HIV.”

The threat left her stunned. “I’m only six weeks pregnant; we don’t even know if this baby’s going to stick yet, and I’m being threatened by CPS … which really put a fork in that relationship that I had built with that provider.”

With her friend Heather’s help, Covin found a new health care team in Philadelphia consisting of an OB-GYN, a social worker, a high-risk nurse, and a pediatrician — all of whom felt the benefits of breastfeeding with HIV outweighed the slim risk of transmission. In the small community of HIV-positive parents, this team was known through whispers as the ones to go to if you had HIV and wanted to breastfeed without getting reported to child protective services.

Initially, she was undecided on breastfeeding the daughter she was expecting.

“Some days I would go in there and say, ‘Yes, I’m doing it.’ Then other days I’d be like, ‘No I’m not doing this.’ And they did that tango with me, just informing me of all of the things, the research, what they’ve seen in previous patients and children. It was awesome. I had options. I could choose what life was going to look like for me and my baby moving forward.”

Under the new provider’s care, Covin gave birth to Zuri, then spent the next seven months breastfeeding her daughter, who also received prophylactic medications during and after that time period.

“It felt beautiful. It felt so natural. I couldn’t believe that it was happening, that I was able to do it in front of people in scrubs,” she said, rather than hiding it from them.

Per protocol, Covin and Zuri both took medications to lower the transmission risk.

“We started on one type of treatment for the first four weeks after she was born, and then we switched into another treatment that had less medication in it, less types of drugs,” she said. “We did that for the length of time that we breastfed plus a month afterwards,” she said, adding that both children are now thriving and doing well and that neither has the virus.

Covin now works as a senior manager of community programming with The Well Project in Philadelphia (a nonprofit organization that serves women living with HIV and those vulnerable to it across the gender spectrum). She is one of a small subset of HIV-positive parents who want to breastfeed — estimated to be about 5,000 large annually nationwide — who are potentially impacted by the AAP’s new guidelines. The new rules mean that people like Covin won’t have to go to the trouble of finding a doctor breaking guidelines to be supportive of women breastfeeding while living with HIV; instead, doctors will just start openly presenting doing so as a legitimate option.

“The 5,000 number is the number of women living with HIV that we think become pregnant annually in the United States, and in Colorado, that number is probably closer to 50 or 60,” said Dr. Abuogi, who added that many are women of color. But the number and background of the people impacted isn’t the point.

“All women and mothers want to have the full range of choices and options to make the best infant feeding decisions for their children,” she said.

Of the new guidelines, she said they could make a difference in the parenting experience. “This gives these women that option if they’re able to be on their treatment and doing well.”

UK: New Crown Prosecution Service guidance on cases of alleged HIV transmission states that undetectable viral load stops HIV transmission

U=U acknowledged in prosecutors’ guidance in England and Wales

Krishen Samuel

New Crown Prosecution Service guidance on cases of alleged HIV transmission state that an undetectable viral load stops HIV transmission. While the previous guidance stated that a person’s viral load at the time may provide a defence because it was believed to reduce transmission risk, it did not clearly set out the medical consensus is that this risk is zero. Cases should no longer be taken to court in England and Wales when a person has an undetectable viral load and is aware that Undetectable = Untransmittable (U=U).

In England, Wales and Northern Ireland, concealing or lying about living with HIV is not viewed as a sexual offence. This is unlike jurisdictions that have specific HIV non-disclosure laws. However, reckless or intentional transmission of an STI is viewed as a form of grievous bodily harm that can result in criminal charges.

Since 2019, the National AIDS Trust has been working with the Crown Prosecution Services (CPS) to update their guidance to accord with medical knowledge regarding the lack of risk if someone has an undetectable HIV viral load. The latest guidance issued last week clearly specifies the conditions that must be met for a charge of this nature to occur. Importantly, this only applies to sexual transmission and not to other modes, such as needle-sharing.

Prior to seeking out expert witnesses to rule out other sources of infection, and to confidently ascertain if one person transmitted HIV to another, prosecutors need to work through a series of conditions that need to be met for there to be sufficient evidence for a criminal charge. Gathering information for these conditions involves police investigation and will likely be intrusive for both the accuser and the accused.

To begin with, the person making the accusation must have an STI that amounts to a form of grievous bodily harm. While this harm need not be either permanent or dangerous, it should require treatment and have lasting consequences. Based on previous court judgements, the two STIs that qualify are HIV and herpes. Since 2001, there have been more than 30 people convicted of reckless HIV transmission, one of intentional HIV transmission and one of recklessly transmitting herpes in England and Wales. The rest of this article will focus on cases related to HIV.

The second condition is that the accused must have HIV at the time of having sex with the accuser. This can be proven in several ways, including via medical records, during interrogation or upon the discovery of medications such as antiretrovirals.

The next condition is that the accused knew they had HIV at the time of sex. If they were unaware of their status, and only diagnosed or became aware after having sex with the accuser, there would be insufficient evidence to meet this condition. If the couple had sex multiple times, and the accused was diagnosed or became aware during this period, it would similarly be difficult to prove that they knew their status at the time of transmission. Additionally, it could be the accuser who transmitted HIV to the accused, instead of the other way around. Thus, prosecutors need to carefully consider dates of diagnoses and other relevant evidence.

This condition is not completely straightforward: there is the possibility that the accused was not necessarily diagnosed with HIV but could otherwise have known they had it (through showing clear symptoms, or transmission to other sexual partners, for instance).

The fourth condition is central to building the prosecution’s case: the person living with HIV must have intended to transmit it or knew there was a risk and went on to have sex with the accuser anyway. Intentional cases of HIV transmission are few and far between.

For most cases – those related to reckless transmission – there are several important factors to consider. If the person living with HIV believed that they took reasonable steps to prevent transmission, such as using a condom or having an undetectable viral load, this could be a defence against this condition. However, as transmission can occur even in the instance that reasonable steps are taken, the central question is whether the accused believed they were putting the other person at a significant risk of HIV infection.

Here, a range of factors need to be considered, including what the accused was told about prevention, their level of infectiousness, their knowledge of how treatment works, whether they understood the information, if they ejaculated inside their partner and the number of sexual encounters. The possibility that inadequate information was provided by the medical practitioner also needs to be considered.

Importantly, the updated guidance specifically references an undetectable viral load. It acknowledges that a person living with HIV with a known undetectable viral load cannot be seen to recklessly transmit the virus if they were relying on their undetectable status as a means of preventing infection. Here, it is crucial to determine if the person living with HIV was undetectable at the time of sex, or whether they believed that they were, based on both viral load tests and consultations with their doctor.

While there is no legal obligation for the person living with HIV to inform their sexual partners of their HIV status, if the accuser consented to sex when they knew their partner had HIV, evidence of this knowledge is a defence against a reckless transmission charge.

The final condition is that the accused (and nobody else) in fact infected the accuser with HIV. The guidance acknowledges that this condition may be challenging to prove, especially in cases where a person has multiple sexual or needle-sharing partners. It is also intrusive and can require a great deal of investigation, time and expert evidence. Thus, this step should only be undertaken when the previous conditions are confidently met. If the prosecution cannot rule out the possibility that the infection came from another sexual or needle-sharing partner, there is insufficient evidence to meet this condition and therefore to prosecute, regardless of whether the preceding steps could be proven.

In the instance that expert evidence is required to prove that the accused infected the accuser, the guidance mentions methods such as phylogenetic analysis. It correctly states that this form of evidence may prove with certainty that the accused did not infect the accuser, but not that they did – as both people could have acquired the genetically similar virus from a third person. Additionally, recency assays can be used to determine whether an HIV infection is recent or longstanding, which can form part of the evidence. There is currently no objective scientific method to determine that one person transmitted HIV to another with complete certainty.

The National AIDS Trust has commended the updated guidance, as it is notable that it aligns with current scientific understanding. However, they also acknowledged that HIV criminalisation remains inherently problematic.

“We believe treating the reckless transmission of HIV as a criminal issue does more harm than good and does not result in reduced transmissions or a greater public understanding of HIV,” they say. “The updates to the guidance can go some way to ensure that cases are handled sensitively and consider the facts around HIV today. It’s essential that the CPS continue open dialogue with people living with HIV, community organisations and clinicians to ensure that the guidance reflects the most up to date evidence and that it is supporting good practice.”

References

The Crown Prosecution Service. Intentional or reckless sexual transmission of infection. Published online 29 March 2023.

New principles lay out human rights-based approach to criminal law

New legal principles launched on International Women’s Day to advance decriminalization efforts

The International Committee of Jurists (ICJ) along with UNAIDS and the Office of the High Commissioner for Human Rights (OHCHR) officially launched a new set of expert jurist legal principles to guide the application of international human rights law to criminal law.

The ‘8 March principles’ as they are called lay out a human rights-based approach to laws criminalising conduct in relation to sex, drug use, HIV, sexual and reproductive health, homelessness and poverty.

Ian Seiderman, Law and Policy Director at ICJ said, “Criminal law is among the harshest of tools at the disposal of the State to exert control over individuals…as such, it ought to be a measure of last resort however, globally, there has been a growing trend towards overcriminalization.”

“We must acknowledge that these laws not only violate human rights, but the fundamental principles of criminal law themselves,” he said.

For Edwin Cameron, former South Africa Justice of the Constitutional Court and current Inspecting Judge for the South African Correctional Services, the principles are of immediate pertinence and use for judges, legislators, policymakers, civil society and academics. “The 8 March principles provide a clear, accessible and practical legal framework based on international criminal law and international human rights law,” he said.

The principles are the outcome of a 2018 workshop organized by UNAIDS and OHCHR along with the ICJ to discuss the role of jurists in addressing the harmful human rights impact of criminal laws. The meeting resulted in a call for a set of jurists’ principles to assist the courts, legislatures, advocates and prosecutors to address the detrimental human rights impact of such laws.

The principles, developed over five years, are based on feedback and reviews from a range of experts and stakeholders. They were finalized in 2022. Initially, the principles focused on the impact of criminal laws proscribing sexual and reproductive health and rights, consensual sexual activity, gender identity, gender expression, HIV non-disclosure, exposure and transmission, drug use and the possession of drugs for personal use. Later, based on the inputs of civil society and other stakeholders, criminalization linked to homelessness and poverty were also included.

Continued overuse of criminal law by governments and in some cases arbitrary and discriminatory criminal laws have led to a number of human rights violations. They also perpetuate stigma, harmful gender stereotypes and discrimination based on such grounds as gender or sexual orientation.

In 2023, twenty countries criminalize or otherwise prosecute transgender people, 67 countries still criminalize same-sex sexual activity, 115 report criminalizing drug use, more than 130 criminalize HIV exposure, non-disclosure and transmission and over 150 countries criminalize some aspect of sex work.

In the world of HIV, the abuse and misuse of criminal laws not only affects the right to health, but a multitude of rights including: to be free from discrimination, to housing, security of the person, movement, family, privacy and bodily autonomy, and in extreme cases the very right to life. In countries where sex work is criminalized, for example, sex workers are seven times more likely to be living with HIV than where it is partially legalized. To be criminalized can also mean being deprived of the protection of the law and law enforcement. And yet, criminalized communities, particularly women, are often more likely to need the very protection they are denied.

UNAIDS Deputy Executive Director for the Policy, Advocacy and Knowledge Branch, Christine Stegling said, “I welcome the fact that these principles are being launched on International Women’s Day (IWD), in recognition of the detrimental effects criminal law can, and too often does have on women in all their diversity.”

“We will not end AIDS as a public health threat as long as these pernicious laws remain,” she added. “These principles will be of great use to us and our partners in our endeavors.”

Also remarking on the significance of IWD, Volker Türk, High Commissioner for Human Rights, said, “Today is an opportunity for all of us to think about power and male dominated systems.”

His remarks ended with, “I am glad that you have done this work, we need to use it and we need to use it also in a much more political context when it comes precisely to counter these power dynamics.”

“Frankly we need to ask these questions and make sure that they are part and parcel going forward as to what human rights means,” he said.

In conclusion, Phelister Abdalla, President of the Global Network of Sex Work Projects, based in Kenya noted: “When sex work is criminalized it sends the message that sex workers can be abused…We are human beings and sex workers are entitled to all human rights.”

Uganda: Legal Environment Assessment recommends changes to the penal code to address HIV and sex work criminalisation, stigma, discrimination and gender-based violence

Ugandan Laws Constraining Fight against HIV/AIDS – Report

 

A report titled “Legal Environment Assessment (LEA) for HIV/AIDS in Uganda” released by the Uganda AIDS Commission on Friday has revealed that some Ugandan laws, regulations and policies constrain effective HIV response in the country.

The Report is based on data collected during the period of July 2021 to February 2022.

The main objective of the Report was to assess the extent to which existing laws, regulations, and policies enable or constrain key protections for people affected by HIV in Uganda.

The Report also aimed to identify all relevant laws, policies, and strategies that affect, positively or adversely, the successful, effective, and equitable delivery of HIV prevention, treatment, care, and support services to people living with HIV and HIV-affected persons; to assess the key human rights issues affecting people living with HIV; to assess the availability, accessibility, and affordability of interventions that promote rights of people living with HIV and other people affected by or at risk of HIV in Uganda.

The Report also aimed to analyse the extent to which people living with HIV and those affected by or at risk of HIV in Uganda are aware of existing legal frameworks and support systems to access services; and to provide recommendations for the creation of an enabling legal, social, and policy framework to eliminate HIV-related stigma, discrimination, and violence against people living with, affected by or at risk of HIV in Uganda.

KEY FINDINGS

HIV Prevention and Control Act; Sections 41 and 43 criminalises attempted transmission of HIV, and intentional transmission of HIV respectively, thus discouraging HIV testing and the disclosure of positive test results. Intention to transmit HIV is difficult to prove in situations where people may not know their HIV status.

HIV Prevention and Control Act; Section 18 (2) allows a health worker to disclose HIV test results to a third party without the consent of the affected person, thus violating their right to privacy and potentially discouraging people from testing for HIV if they think their results may be disclosed to third parties without their consent.

Releasing HIV test results to another person without the consent of the client may also result in stigma or violence against the client.

HIV Prevention and Control Act Section 13 (b) provides for routine HIV testing of a pregnant woman, and Section 13 (c) provides for routine HIV testing of a partner of a pregnant woman.

However, health workers routinely make it appear mandatory for pregnant women and their partners to be tested for HIV, with or without their consent. This has the effect of violating their right to privacy and autonomy and discourages people from visiting health facilities.

Uganda’s Penal Code Act (PCA) Sections 136-139 criminalise sex work and other activities associated with prostitution with the effect of unfairly targeting key and vulnerable populations and exposing them to arbitrary arrest and mistreatment by law enforcement, while male clients rarely receive the same treatment.

The harassment of sex workers has the effect of increasing societal stigma towards them, denying them the livelihood, which is their only source of income, driving them and keeping them away from health and justice support services.

The Director General of the Uganda AIDS Commission, Dr Nelson Musoba, said that while the Government of Uganda is committed to the goal of ending AIDS as a public health threat by 2030, there is also increasing recognition that this goal cannot be achieved unless the country addresses structural barriers such as legal impediments, and issues such as human rights, stigma, discrimination, gender inequality and gender-based violence.

The President of the Uganda Law Society, Pheona Nabasa Wall said that although Uganda has HIV Prevention and Control Act (2014) and other regulations, prosecution under this law has been challenging partly due to its discriminative nature and challenges associated with proving most of the provisions under it.

Persons charged with HIV related offences are instead often subjected to public humiliation and bail applications, mandatory tests upon arrests, and in cases of defilement of children, maximum penalties are pleaded and recommended by prosecutors even in the absence of scientific evidence of transmission of HIV she said.

She added that HIV victims have a number of issues which include among others; stigma nutritional needs, denial of justice and palliative care, forced HIV testing, discrimination in gaining access to medical care, education, employment, and violation of right to medical privacy.

RECOMMENDATIONS

Review and repeal sections 136 & 139 of the Penal Code Act to decriminalise sex work.

Harmonise the legal provisions on abortion and decriminalise abortion in order to give women access to safe abortion services, guarantee autonomy and decision-making power over their reproductive lives (Provisions in Sections 142 and 143 of the Penal Code Act and Article 22 of the Constitution of Uganda present contradictions on the issue of abortion. Ministry of Health guidelines on abortion were suspended).

Repeal sections 167 to 169 of the Penal Code Act because they are archaic, out-dated, and no longer serve the purpose for which they were created. Uganda Police Force and the DPP should desist from charging and prosecuting individuals with these provisions.

Prosecute HIV-related cases such as those relating to intentional transmission of HIV under general criminal law, not HIV. specific laws.

Reform the law to make it explicit that pregnant mothers should be tested upon giving consent, after receiving full information from health care providers.

Reform the law to remove the provision for a health worker to disclose results to a third party without the consent of the client; instead support the process of disclosure by the client himself/herself.

The Report was launched by the Acting Minister of Justice and Constitution Affairs, Muluri Mukasa who applauded Uganda AIDS Commission and development partners for conducting the assessment.

The Report, he said, shades light on the impact of Ugandan laws in response to HIV/AIDS

Minister Muluri added that the Report findings will provide policy makers with evidence to carryout good legislation and develop policies and laws that will ensure that government does not default on its commitment to end HIV as a public health threat by 2030.

The full report can be downloaded here

Report: End HIV criminalisation to address LGBT+ inequities

A new report published by the Global Equality Caucus examines what elected officials can do to ensure LGBT+ people receive equitable access to HIV healthcare.

The report titled Breaking barriers in HIV: Action for legislators to address LGBT+ inequities, includes ten recommendations for legislators and others to take forward, including repealing or modernising outdated HIV criminalisation laws, and doing more to safeguard health data privacy.

The report notes that HIV criminalisation laws are “out of step with modern scientific understanding and perpetuate outdated HIV stigmas.” Removing such laws would help to tackle prejudice and refocus HIV as a public health crisis.

Also relevant to our ongoing work on molecular HIV surveillance, the report further recommends that where data is collected, anonymity should always be assured, and “this applies to HIV testing, immigration status, or whatever other circumstances that may place LGBT+ people in danger should their health data be shared with other government authorities.”

Parliamentarians have a responsibility to ensure government departments respect the privacy of citizens and that health data is not being shared with agencies that could present additional barriers to the lives of LGBT+ people, such as immigration authorities or justice departments.

WATCH HIV Justice Live! (Ep 4): How to advocate for prosecutorial guidance for HIV-related cases

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.

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 single out Uganda where “23 people connected with a shelter for providing services for the LGBTI community have been arrested—19 have been charged with a negligent act likely to spread infection or disease. Those 19 are being held in prison without access to a court, legal representation or medication.”

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.

UNAIDS recently produced a new guidance document that draws on key lessons from the response to the HIV epidemic: Rights in the time of COVID-19: lessons from HIV for an effective, community-led response.   

Canada: Justice Committee report recommends wide-ranging reforms to HIV criminalisation, including removing HIV non-disclosure from sexual assault law

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.

According to a press release issued by our HIV JUSTICE WORLDWIDE partners, the Canadian HIV/AIDS Legal Network:

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.”
  • And, until a new law is drafted and enacted (which is only likely to happen if the current Liberal Government is re-elected in October), there should be implementation of a common prosecutorial directive across Canada to end criminal prosecutions of HIV non-disclosure, except in cases where there is actual 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 report is the result of a study of the ‘Criminalization of Non-Disclosure of HIV Status’ that ran between April and June 2019. Many Canadian experts testified as key witnesses to help MPs gain insight into why Canada’s current approach is wrong. HIV JUSTICE WORLDWIDE also submitted a brief to the committee, providing international context to Canada’s extremely severe approach to HIV non-disclosure.

The Legal Network concludes:

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.

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SOURCE Department of Justice Canada

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

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