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.”
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.
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 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.
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
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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