Oslo Declaration on HIV Criminalisation (HJN, 2012)

Advocates working to end inappropriate criminal prosecutions for HIV non-disclosure, potential exposure and non-intentional transmission from around the world explain why they support the Oslo Declaration on HIV Criminalisation.

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

Canada: Urgent – support the call for prosecutorial guidelines in Ontario

Canada is facing its most critical point in the history of criminalisation of HIV non-disclosure since the Supreme Court’s 1998 Cuerrier decision which found that not disclosing a known HIV-positive status prior to sex that poses a “significant risk” of HIV transmission negates the other person’s consent, rendering it, in effect, a sexual assault.

In February 2012, the Supreme Court will hear two cases – Mabior and ‘DC’ – that will re-examine whether Cuerrier remains valid in the light of inconsistent lower court decisions regarding what constitutes a “significant risk” of HIV transmission in the context of sexual transmission, especially when the person with HIV wears a condom and/or has an undetectable viral load due to effective antiretroviral therapy.

The main thrust of the arguments from both sides is that the “significant risk” test is unfair and should be reassessed.  However, Manitoba’s Attorney General (who is appealing the Manitoba Court of Appeal’s decision to partially acquit Mr Mabior due to his using a condom or due to his undetectable viral load when not using a condom) is arguing in its appellants factum that the only fair legal test is whether or not a person with HIV disclosed before any kind of sexual contact, because figuring out whether the risk at the time was significant enough is too complicated. It also argues that such non-disclosure should be charged as aggravated sexual assault, which carries a maximum 14 year sentence for each episode of unprotected sex without disclosure.

Lindsay Sinese, in excellent recent blog post from The Court, examining both Mabior and DC as they head to the Supreme Court, highlights what is already problematic about attempting to prove non-disclosure in cases that are often based on he said/(s)he said testimony.

In the jurisprudence surrounding HIV criminalization, th[e DC] case reads like frustrating déja vu, exhibiting several characteristics common to many of the more than 130 people living with HIV who have been subject to criminal charges. Namely, the parties rarely agree on the facts of the case, particularly on whether or not the sexual intercourse in question was protected, how many times it occurred and under what circumstances. These critical facts obviously present significant obstacles with regards to proof and the situation devolves in a “he said, she said” scenario.

The inability to prove the key elements upon which the case turns leaves the outcome to be very unpredictable. As a result, the cases tend to hinge on the credibility of the parties, the determination is, at best, a loose science, and, at worst, an exercise in hunch-based guess work.

Another problematic factor in this realm of prosecution is that charges are frequently laid after the dissolution of a relationship. It could be argued that some of the complaints may be brought for vengeful and vexatious purposes. By leaving HIV positive people vulnerable to criminal prosecution, we are sanctifying the punishment of an already vulnerable group, and pushing this community further onto the fringes of society.

The greatest disappointment, however, is that Ontario’s Attorney General has joined with the AG’s of Manitoba and Quebec (where DC was tried) by obtaining intervener status.

In an application this week to the Supreme Court of Canada, the Office of the Ontario Attorney General asks to be granted intervener status in an upcoming high-profile case revolving around those living with the human immunodeficiency virus, which can lead to AIDS. It argues that the current legal standard the courts must meet has led to different interpretations across the country, resulting in “uncertainty and unfairness” in the Canadian legal system. To remedy this, the government argues that criminal liability should be based only on whether or not someone disclosed his or her HIV-status before engaging in sexual activity and not just on the safety risks they pose.

This is a major slap in the face to the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) campaign urging Ontario’s Attorney General to develop prosecutorial guidelines for Crown prosecutors handling allegations of HIV non-disclosure.  The working group produced an excellent report in June 2011 which calls for restraint in HIV non-disclosure prosecutions and provides detailed legal and practice guidance covering general principles; bail; scientific/medical evidence and experts; charge screening; resolution discussions; sentencing; and complainant considerations. The report, available here, is a must-read for all advocates working in their own countries to obtain prosecutorial guidelines.

In a recent email, CLHE co-chairs Ryan Peck and Anne Marie DiCenso outline the problems they perceive with the promises made by the Ministry of the Ontario Attorney General’s and its current position as intervener.

In December 2010, Chris Bentley, the former Attorney General, promised to develop guidelines. Since then, the Ministry of the Attorney General has not informed CLHE when it will be honouring its commitment to develop prosecutorial guidelines, and has not responded to CLHE’s guideline recommendations. CLHE’s recommendations are at http://www.catie.ca/pdf/Brochures/HIV-non-disclosure-criminal-law.pdf.

It is particularly troubling that the Attorney General, after committing to develop guidelines, has filed materials at the Supreme Court of Canada calling upon the Court to rule that people living with HIV must disclose their HIV status before any sexual activity whatsoever, and that not disclosing should be prosecuted as an aggravated sexual assault, which is one of the most serious offences in the Criminal Code.

When asked about this position, former Attorney General, Chris Bentley, indicated that although the intervention materials advocate for the elimination of the current significant risk test, the Attorney General of Ontario has no intention of taking such a position at the Supreme Court of Canada.

It is vital that the Attorney General fulfill the promises made.

But, as of today, we have not received any guarantee from the new Attorney General, John Gerretsen, that the Ministry of Attorney General will amend its intervention materials and take the position that people living with HIV should not be prosecuted when there is no significant risk of HIV transmission.

The Ministry of the Attorney General has until December 20 to submit its final materials to the Supreme Court.  While preparing the materials, the new Attorney General, John Gerretsen, needs to know that the community is mobilized and is watching him.

The most effective way to do this is for everyone who reads this post to endorse the call for guidelines. While the Ministry may care more about Ontarians signing the call, I have had it confirmed from my contacts at CLHE that signatures from other jurisdictions would be very helpful.

When you sign the call the following email (which you can personalise if you want) will be sent to the new Attorney General, John Gerretsen, urging him to develop guidelines by December 31, 2011.

Dear Minister Gerretsen,
I am writing to congratulate you on your new post as Attorney General, and to urge you to take action on an important issue.

As you know, your predecessor, the Honourable Chris Bentley, committed in December 2010 to draft guidelines for criminal cases involving allegation of non-disclosure of sexually transmitted infections, including HIV.

I urge you to draft these much-needed guidelines by December 31, 2011. I also urge you to take into account the broad-based community input provided to the Ministry of Attorney General by the Ontario Working Group on Criminal Law and HIV Exposure (the Working Group). In spring 2011, the Working Group consulted over 200 people — people living with HIV/AIDS; communities affected by HIV; legal, public health, criminal justice and scientific experts; health care providers; and advocates for women’s rights in the context of sexual violence and the criminal justice system. In June 2011, the Working Group provided the Ministry with their Report and Recommendations based on these consultations.

I trust that you will draft guidelines by December 31, 2011, and that you will provide the Working Group and its constituents with an opportunity to review and provide input on this draft.

Guidelines are urgently needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner.  
Please take action.

UNAIDS announces new project examining “best available scientific evidence to inform the criminal law”

A new project announced yesterday by UNAIDS will “further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health.”

I’m honoured to be working as a consultant on this project, and although I can’t currently reveal any more details than in the UNAIDS article (full text below), suffice to say it is hoped that this project will make a huge difference to the way that lawmakers, law enforcement and the criminal courts treat people with HIV accused of non-disclosure, alleged exposure and non-intentional transmission.

The UNAIDS article begins by noting some positive developments previously highlighted on my blog, including Denmark’s suspension of its HIV-specific law.  It’s not too late to sign on to the civil society letter asking the Danish Government to not to simply rework the law, but to abolish it altogether by avoiding singling out HIV. So far, well over 100 NGOs from around the world have signed the letter.

The article also mentions recent developments in Norway. In fact, the UNAIDS project is funded by the Government of Norway, which has set up its own independent commission to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people who are alleged to have exposed others, to, and/or transmitted, HIV.  It will present its findings by October 2012.

As well as highlighting some very positive recent developments in the United States – the National AIDS Strategy’s calls for HIV-specific criminal statutes that “are consistent with current knowledge of HIV transmission and support public health approaches” and the recent endorsement of these calls by the National Alliance of State and Territorial AIDS Directors (NASTAD) – it also focuses on three countries in Africa.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

I’d like to add a few more countries to the “positive development” list.

Canada
Last September, I spoke at two meetings, in Ottawa and Toronto, that officially launched the Ontario Working Group on Criminal Law and HIV Exposure’s Campaign for Prosecutorial Guidelines for HIV Non-disclosure.

The Campaign’s rationale is as follows

We believe that the use of criminal law in cases of HIV non-disclosure must be compatible with broader scientific, medical, public health, and community efforts to prevent the spread of HIV and to provide care treatment and support to people living with HIV. While criminal prosecutions may be warranted in some circumstances, we view the current expansive use of criminal law with concern.

We therefore call on Ontario’s Attorney General to immediately undertake a process to develop guidelines for criminal prosecutors in cases involving allegations of non-disclosure of HIV status.

Guidelines are needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner. The guidelines must ensure that decisions to investigate and prosecute such cases are informed by a complete and accurate understanding of current medical and scientific research about HIV and take into account the social contexts of living with HIV.

We call on Ontario’s Attorney General to ensure that people living with HIV, communities affected by HIV, legal, public health and scientific experts, health care providers, and AIDS service organizations are meaningfully involved in the process to develop such guidelines.

Last month, Xtra.ca reported that

The office of the attorney general confirms it is drafting guidelines for cases of HIV-positive people who have sex without disclosing their status.

This is a major breakthrough, but the campaign still needs your support. Sign their petition here.

By the way, video of the Toronto meeting, ‘Limiting the Law: Silence, Sex and Science’, is now online.

Australia
Also last month, the Australian Federation of AIDS Organisations (AFAO) produced an excellent discussion paper/advocacy kit, ‘HIV, Crime and the Law in Australia: Options for Policy Reform‘.

As well as providing an extensive and detailed overview regarding the current (and past) use of criminal and public health laws in its eight states and territories, it also provides the latest data on number, scope and demographics of prosecutions in Australia.

There have been 31 prosecutions related to HIV exposure or transmission in Australia over almost twenty years. Of those, a number have been dropped pre-trial, and in four cases the accused has pleaded guilty. All those charged were male, except for one of two sex workers (against whom charges were dropped pretrial in 1991). In cases where the gender of the victim(s) is/are known, 16 have involved the accused having sex with female persons (one of those cases involves assault against minors) and 10 involved the accused having sex with men. This suggests that heterosexual men, who constitute only about 15% of people diagnosed with HIV, are over-represented among the small number of people charged with offences relating to HIV transmission. Further, men of African origin are over-represented among those prosecuted (7 of 30), given the small size of the African-Australian community.

It then systematically examines, in great detail, the impact of such prosections in Australia.

These include:

  1. HIV-related prosecutions negate public health mutual responsibility messages
  2. HIV-related prosecutions fail to fully consider the intersection of risk and harm
  3. HIV-related prosecutions ignore the reality that failure to disclose HIVstatus is not extraordinary
  4. HIV-related prosecutions reduce trust in healthcare practitioners
  5. HIV-related prosecutions increase stigma against people living with HIV
  6. HIV-related prosecutions are unacceptably arbitrary
  7. HIV-related prosecutions do not decrease HIV transmission risks
  8. HIV-related prosecutions that result in custodial sentences increase the population of HIV-positive people in custodial settings

It notes, however, that

There is a narrow category of circumstances in which prosecutions may be warranted, involving deliberate and malicious conduct, where a person with knowledge of their HIVstatus engages in deceptive conduct that leads to HIV being transmitted to a sexual partner. A strong, cohesive HIV response need not preclude HIV-related prosecutions per se. Further work is required by those working in the areas of HIV and of criminal law:

  • To consider what circumstances of HIV transmission should be defined as criminal;
  • To define what measures need to be put in place to ensure that prosecutions are a last resort option and that public health management options have been considered; and
  • To ensure those understandings are part of an ongoing dialogue that informs the development of an appropriate criminal law and public health response.

 That’s exactly the kind of policy outcome that UNAIDS is hoping for.

In the meantime, AFAO suggests some possible strategies towards policy reform. Their recommendations make an excellent advocacy roadmap for anyone working to end the inappropriate use of the criminal law.

Their suggestions include:

  • Enable detailed discussion and policy development
  • Develop mechanisms to learn more about individual cases
  • Prioritise research on the intersection of public health and criminal law mechanism, including addressing over-representation of African-born accused

  • Work with police, justice agencies, state-based agencies and public health officials
  • Improve judges’ understanding of HIV and work with expert witnesses
  • Work with correctional authorities
  • Work with media

I truly hope that the recent gains by advocates in Australia, Canada, Denmark, Guinea, Norway, Togo, Senegal and the United States is the beginning of the end of the overly broad use of the criminal law to inappropriately regulate, control, criminalise and stigmatise people with HIV in the name of justice or public health.

The full UNAIDS article is below.  I’ll update you on the project’s progress just as soon as I can.

Countries questioning laws that criminalize HIV transmission and exposure

26 April 2011

On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.

A working group has been established by the Danish government to consider whether the law should be revised or abolished based on the best available scientific evidence relating to HIV and its transmission.

This development in Denmark is not an exception. Last year, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people transmitting HIV.

In the United States, the country with the highest total number of reported prosecutions for HIV transmission or exposure, the National AIDS Strategy adopted in July 2010 also raised concerns about HIV-specific laws that criminalize HIV transmission or exposure. Some 34 states and 2 territories in the US have such laws. They have resulted in high prison sentences for HIV-positive people being convicted of “exposing” someone to HIV after spitting on or biting them, two forms of behaviour that carry virtually no risk of transmission.

In February 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD), the organization representing public health officials that administer state and territorial HIV programmes, expressed concerns about the “corrosive impact” of overly-broad laws criminalizing HIV transmission and exposure. The AIDS Directors called for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

Best available scientific evidence to inform the criminal law

These developments indicate that governments are also calling for a better understanding of risk, harm and proof in relation to HIV transmission, particularly in light of scientific and medical evidence that the infectiousness of people receiving anti-retroviral treatment can be significantly reduced.

To assist countries in the just application of criminal law in the context of HIV, UNAIDS has initiated a project to further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health. The project, with support from the Government of Norway, will focus on high income countries where the highest number of prosecutions for HIV infection or exposure has been reported.

The initiative will consist of two expert meetings to review scientific, medical, legal and human rights issues related to the criminalization of HIV transmission or exposure. An international consultation on the criminalization of HIV transmission and exposure in high income countries will also be organized.

The project will further elaborate on the principles set forth in the Policy brief on the criminalization of HIV transmission issued by UNAIDS and UNDP in 2008. Its findings will be submitted to the UNDP-led Global Commission on HIV and the Law, which was launched by UNDP and UNAIDS in June 2010.

As with any law reform related to HIV, UNAIDS urges governments to engage in reform initiatives which ensure the involvement of all those affected by such laws, including people living with HIV.

UK: New Guidance for Police Investigating Criminal Transmission of HIV

I’m reproducing below a press release issued yesterday by the National AIDS Trust (NAT) about the new UK (with the exception of Scotland) guidance for police officers investigating allegations of criminal HIV transmission. We’ll hear more about the guidance – a world’s first – and how it was developed, at the International AIDS Conference in Vienna which begins on Sunday.

Police and HIV sector work together to produce guidance

New guidance has been produced to help police when investigating allegations of criminal transmission of HIV. The guidance provides police officers with basic facts about HIV and sets out advice on how to deal with complaints about reckless (or intentional) transmission of HIV in a fair and sensitive manner.

The new guidance from the Association of Chief Police Officers (ACPO) was developed by a working group which included police officers, representatives of the Crown Prosecution Service and the National Policing Improvement Agency, and the National AIDS Trust. Police across England, Wales and Northern Ireland will be expected to follow new guidance.

Ellie O’Connor, Detective Chief Inspector of the Metropolitan Police, comments;

“Investigations into the criminal transmission of HIV are extremely rare but we know they cause a lot of anxiety for the individuals involved. It is important police officers have an understanding HIV and what to do should someone make a complaint.

In producing this guidance we listened to the concerns of the HIV sector and worked in partnership with them. We strongly encourage all police forces to disseminate this guidance and ensure officers know to access it when a case occurs.”

Deborah Jack, Chief Executive of NAT, comments;

“Criminal investigations into HIV transmission worry many people with HIV, even though they occur only very occasionally. We are pleased that we have been able to work together with the police to produce guidance for their officers. The Association of Chief Police Officers took the issue very seriously.

The resulting guidance sets out a fair way to deal with these investigations that keeps in mind the particular sensitivities of HIV. This new guidance should serve to reduce the number of police investigations and reassure people living with HIV of what they can expect in the unlikely circumstance this occurs.”

For further information about this issue NAT and THT have produced a leaflet for people living with HIV – Prosecutions for HIV Transmission: A guide for people living with HIV in England and Wales.

Under the new guidance for police investigating criminal transmission of HIV, people living with HIV can expect:

  • to be treated supportively.
  • for their confidentially to be respected.
  • an investigation of reckless transmission only to be pursued if a complainant has been infected with HIV
  • for the case to be continually discussed with the Crown Prosecution Service to ensure only legitimate complaints are pursued.
  • contact with any other individuals relevant to the case to be initiated by trained staff at GUM clinics.
  • and uninterrupted access to medication in the event of being taken into custody.

If someone reports to police concerned that they have been exposed to HIV in the past 72 hours they will be referred to an open sexual health clinic or the nearest hospital Accident and Emergency Department to ask for PEP.

For a background study of early police investigations of alleged cases of HIV transmission see Policing Transmission by Terrence Higgins Trust.

Austria: AIDS 2010 delegates warned about criminal HIV exposure laws; law clarified but not binding

The organisers of the International AIDS Conference, due to be held in Vienna from next Sunday (18th July), have today provided an important update on Austria’s criminal HIV exposure and transmission laws.

They recommend that anyone who is aware they are living with HIV practice safer sex and safer injecting practises whilst in Austria to minimise the legal risks.

Although the Austrian Ministry of Justice has issued various opinions clarifying the law on HIV exposure and transmission – including recognising that sex with a condom or unprotected sex with an undetectable viral load is not a criminal offence – and that this is a “firm directive to the courts, it should be noted that it does not actually change the law and is not necessarily binding on the courts. As such, conference delegates are advised to always adopt safer sex practices to protect their health, minimize the risk of transmission and the associated legal risks.”

Full statement below.


Statement on Austrian Laws Impacting People Living with HIV/AIDS (PLHIV)

from AIDS 2010, GNP+ and ICW

Local and international organizers for the XVIII International AIDS Conference (AIDS 2010) look forward to welcoming delegates to Vienna this month.

As delegates plan their stay in Vienna, this short statement provides an overview of some Austrian laws that impact on people living with HIV/AIDS (PLHIV). The organizers of AIDS 2010 recommend that conference delegates read this statement to understand their legal position with respect to these areas of law.

There are two key points in this statement:

  • Intentional and negligent acts capable of transmission of HIV are criminal offences in Austria
  • Legal risks can be minimized through safer sex and safer injecting practices

Intentional and negligent acts capable of transmission of HIV are criminal offences in Austria

The Austrian Penal Code provides that it is a criminal offence to commit an act which is capable of causing the danger of spreading an infectious disease. Under the law, the disease must be reportable or notifiable. HIV is considered such an infectious disease, along with Hepatitis C, tuberculosis and gonorrhoea. An ‘act’ capable of causing danger includes sexual activity such as vaginal or anal intercourse, oral intercourse or heavy kissing where there is biting or open wounds. An ‘act’ could also include the sharing of injecting equipment.

If the act is carried out with the intent of spreading the disease then the penalty is a maximum three years imprisonment or a financial penalty. If it is an act of negligence, then the penalty is a maximum of one-year imprisonment or a financial penalty.

Under Austrian law, the following factors are irrelevant in establishing a criminal offence:

  • Whether the disease was actually transmitted. The key point is whether the act caused danger. This can be a real danger or an abstract (hypothetical) danger.
  • Whether the person carrying out the act thought, ‘without good cause’ (negligently), that the other person already carried the disease. [Note that if person who carried out the act thought ‘with good cause’ (not negligently) the other person was already infected, then the act is not a criminal offence.]
  • Whether the other person consented to the act.
  • Whether the person who carried out the act disclosed his/her disease, although this may reduce the severity of the penalty.

The Global Criminalisation Scan prepared by GNP+ shows that there have been at least 40 prosecutions in Austria resulting in at least 30 convictions. [Note that GNP+ has noted the lack of reliable data as a problem.]

It is important to note that a broad range of organisations now agree that laws that criminalise HIV transmission violate human rights and undermine public health interventions, including HIV prevention initiatives.

Legal risks can be minimized through safer sex and safer injecting practices

There have been a number of developments in Austrian case law that provide greater legal clarity on how PLHIV can minimize their legal risks in relation to the transmission of HIV. This legal information has been kindly provided by Dr Helmut Graupner, an Attorney at Law specializing in sexuality and the law in Austria.

In the lead up to AIDS 2010, the Ministry of Justice has issued an opinion clarifying the law on HIV transmissions. Whilst this opinion is a firm directive to the courts, it should be noted that it does not actually change the law and is not necessarily binding on the courts. As such, conference delegates are advised to always adopt safer sex practices to protect their health, minimize the risk of transmission and the associated legal risks.

For a person living with HIV, sexual intercourse with a condom does not constitute a criminal offence. The Supreme Court of Austria has issued a decision that sexual intercourse with a condom for a PLHIV does not constitute a criminal offence. Please note that the case law on sexual intercourse with a condom only concerns vaginal intercourse and not anal intercourse, however, the opinion of the Ministry of Justice provides that this applies to anal intercourse too.

Oral intercourse (PLHIV giving) without a condom does not constitute a criminal offence. Austrian courts have found that oral intercourse from a PLHIV to another person without a condom does not constitute a criminal offence. However, there is no case law concerning oral intercourse from an HIV-negative person to a PLHIV, so the legal position in this case remains unclear. Such intercourse should not constitute a criminal offence if safer sex practices are observed and no ejaculation into the mouth takes place. However, an HIV positive person ejaculating into the mouth of someone who is HIV negative may constitute a criminal offence. [An element of HIV transmission law in Austria is ‘abstract’ risk or hypothetical risk. Whilst there have been no cases concerning oral intercourse from an HIV-negative person to a PLHIV, due to the abstract risk element of the law, we have been advised to include this advice in the statement.]

If a PLHIV has an undetectable viral load, unprotected sexual intercourse does not constitute a criminal offence. The Ministry of Justice has provided a firm opinion that if the PLHIV has an undetectable viral load and is consistently following an effective ART regimen then sexual intercourse without a condom does not constitute a criminal offence, given that such persons are not infectious. Please note that the opinion is not binding on the courts. As such, delegates are advised to adopt safer sex practices even if they have an undetectable viral load.

The AIDS 2010 organisers recommend that all conference participants practice safer sex and safer injecting practices to protect their health, minimize the risk of transmission and the associated legal risks.

There are no restrictions in Austria for PLHIV in accessing public spaces
The Vienna public transportation system (Wiener Linien) has no regulations denying PLHIV the right to use the system and there has never been a reported incident of denied service to a PLHIV. Further, regulations denying entry to those with contagious diseases to public swimming facilities in Vienna were removed recently.

Conference organizers are grateful to representatives of the Austrian Government, the City of Vienna and the Austrian Parliament for their efforts to work with us to clarify Austrian laws impacting PLHIV. We are also grateful to them for all the other support given to the conference to make it a success.

UK: Developing guidance for HIV prosecutions: an example of harm reduction?

I’m including an excerpt here – the conclusion, actually – of an excellent article by Yusef Azad of the National AIDS Trust, in the July issue of the HIV/AIDS Policy and Law Review, published by the Canadian HIV/AIDS Legal Network, which describes the way the HIV sector managed to successfully intervene and manage the harm of criminal prosecutions in England & Wales for ‘reckless’ HIV transmission following an initial period of shock and panic.

By persuading the Crown Prosecution Service (CPS) to consult with the community on the production of a policy statement, as well as legal guidance for prosecutors and caseworkers in this area of law, he argues that this was pragmatic ‘harm reduction’. Certainly, the process has resulted in a much higher burden of proof of transmission and guilt, and there have been no successful prosecutions since an African migrant living in Bournemouth pleaded guilty in January 2007.

Since then, three cases have been dismissed by a judge in pretrial hearings, including two gay cases (in Preston in April 2007 and Cardiff in May 2008) and one heterosexual case (in Manchester in October 2007). These prosecutions all failed because the men had the same informed solicitor who successfully argued that the CPS failed to provide uneqivocal proof that the defendant, and only the defendant, could have, in fact, infected the complainant(s). Although the CPS guidance was only published in March 2008, even the existence of draft versions was enough to persuade the judge in the earlier two cases.

The full article, ‘Developing guidance for HIV prosecutions: an example of harm reduction?’, can be found here.

Judging success depends a lot on one’s initial expectations. The CPS were not in a position to end prosecutions for reckless transmission or disagree with the interpretation of the OAPA 1861 as set out by the Court of Appeal.

What they could do — and what they did do — was consider in greater depth, and on the basis of detailed evidence, what is required to prove responsibility for infection, knowledge, recklessness and appropriate use of safeguards. An informed understanding of these elements has, even in the context of current criminal law, resulted in fewer and fairer prosecutions.

As the CPS says in its Policy Statement, “[O]btaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult … accordingly it is unlikely that there will be many prosecutions.” Therefore, we should consider this to be a successful example of policy intervention as harm reduction.

It was not without its risks. Success was due to a number of factors, not least of which was a CPS that was already committed to taking seriously the concerns and experiences of affected communities when considering prosecutions in socially sensitive areas of law.

Some jurisdictions will not have such an enlightened prosecution service, and so the HIV sector will need to start further back in terms of engaging with the authorities. But it may be possible, even given the different legal contexts of different countries, to use the CPS Guidance to help bring about improvements in practice elsewhere.

The process was helped immensely by the commitment from an extraordinarily wide range of partners within the HIV sector, encompassing NGOs, academics, clinicians, virologists and, above all, people living with HIV.

Although harm may be reduced, it has not been ended — prosecutions for reckless HIV transmission remain and will continue. There is an urgent need to restate the ethical and policy case against such prosecutions and to consider freshly how and when we might engage with political decisionmakers on this issue.

UNAIDS says criminal prosecutions do more harm than good

This week UNAIDS has released a fantastic new policy paper firmly establishing that criminal prosecutions for HIV exposure or transmission – whether through sex, drug use or mother to child transmission – do far more harm than good.

The paper coincides with the the XVII International AIDS Conference in Mexico City, where this issue is high on the agenda. There’ll be more from the conference soon, but for now, this policy paper is an extremely important addition to the anti-criminalisation armamentarium.

In some countries, criminal law is being applied to those who transmit or expose others to HIV infection. There are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission. Rather, such application risks undermining public health and human rights. Because of these concerns, UNAIDS urges governments to limit criminalization to cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it. In other instances, the application of criminal law should be rejected by legislators, prosecutors and judges….

 

Download the entire paper (8 pages) here.