Canada: HIV and Human Rights Organisations welcome Canadian Minister of Justice statement recognising the unjust Criminalisation of people with HIV

HIV AND HUMAN RIGHTS ORGANIZATIONS WELCOME FEDERAL GOVERNMENT’S INTEREST IN ENDING UNJUST HIV CRIMINALIZATION

By AIDSLAW | Published: DECEMBER 1, 2016

TORONTO, December 1, 2016 — The Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario (HALCO) welcome today’s statement by Canadian Minister of Justice Jody Wilson-Raybould recognizing the ongoing problem of overly-broad, unjust criminalization of people living with HIV. Today, fittingly for World AIDS Day, the federal government has signaled its intent to address a critical issue that has long been of concern to people living with HIV and human rights advocates across Canada, and that has also attracted international criticism. Minister of Health Dr. Jane Philpott has also met with us on this very issue, and has noted that HIV criminalization in Canada is both a problem and a priority for the government to address.

Press release can be downloaded here

US: Broad coalition takes on Missouri's outdated and stigmatizing HIV criminal laws

JEFFERSON CITY — December 1st was World Aids Day and Missouri activists want legislators to change a law concerning those living with HIV.

Right now, in the state of Missouri, any person who exposes someone to HIV could go to prison. If a person contracts HIV the person who gave it to them could go to prison for life. This law has put 82 people in prison since 1997. Activists explain this law is discriminatory and based on outdated science.

Activists on November 30th launched the Missouri HIV Justice Coalition. The group plans to lobby policy makers to repeal the law.

Empower Missouri Executive Director Jeanette Mott Oxford said the laws should be based on accurate science.

She said the current law makes assumptions about HIV transmission that we now know are incorrect.

“We hope that Missouri will modernize their law making it medically accurate and taking away the stigma of people with HIV by taking the HIV specific part out of our criminal code… certainly there should be laws about doing things such as biting people, but you shouldn’t have a higher penalty for being a person with HIV.”

“About 2/3rds of the United States have “HIV-specific” statues that result in prosecutions of those living with HIV for having sexual contact without being able to prove they disclosed their HIV positive status in advance,” according to activist group The Sero Project.

Senator Rob Schaaf, R-St. Joseph, said he could see the laws changing in the future.

“The law is based upon a false premise,” Sen. Schaaf said. “I doubt that there’s a big urgency in changing it, but I think it would eventually be changed to fit our understanding of the true situation.”

Mott Oxford said the Missouri HIV Justice Coalition plans to hold upcoming events to educate more people about the current law. If you are interested in joining the group, you can contact Mott Oxford at Empower Missouri at (573)-634-2901.

Currently there is no legislation to repeal this law.

Published on KCRG TV on Dec 1, 2016

Uganda: 5 months after filing their initial petition, activists renew their call to amend HIV law

Activists renew call for HIV law amendment

By Noah Jagwe

They argue that the law contains clauses that could deter all the benefits in the fight against the scourge.

According to this group, the law instead instills fear in communities about HIV disclosure and also fuels stigmatization.

Earlier this year, some 60 civil society organizations across the country challenged the criminalization of HIVin Uganda as well as other ‘harmful’ provisions in the Act.

Dora Kichoncho Musinguzi, the executive director Uganda Network on Law and Ethics, said the salient features that are scanned out in the law which they consider discriminatory are: Clauses 21, 41 and 43 of the Act that seek to criminalize HIV, particularly intentional transmission.

The Act would require mandatory disclosure of one’s HIV status, failure of which would be regarded as “criminal”, and attempting to or, intentionally transmitting the virus.

Failure to use a condom where one knows their HIV status would constitute a criminal offence, making them liable for prosecution.

The provisions in the HIV Act, according to Kichonco, do not only stigmatize and discriminate against people living with HIV, but also deter communities from seeking HIV services such as HIV testing and subsequently HIV treatment.

“It is five months since we filed the petition. The government has not responded to our case. This is procedurally wrong and negates justice,” she said.

Kichoncho said if the law continues “as we could see”, it would heighten stigmatization of people living with HIV and that many of the targets such as 90% of people knowing their status, 90% of those who with HIV are on treatment and 90% with suppressed viral load set by the country might not be achieved.

“The law has been counterproductive to all the achievements Uganda has made.”

She said the legal environment in Uganda is not conducive and human rights have not been respected. “Laws that criminalize and stigmatize people with HIV must be repealed.”

Meanwhile, Dorothy Nassolo, communications officer of Forum of People Living with HIV/Aids Networks in Uganda said there is a crisis the country might not stand.

She said a number of patients have been hacked to death because they have been discovered by their spouses for taking ARVs covertly.

National Forum of People Living with HIV/AIDS officer Milly Katana said the most affected group by the law are women through gender-based violence at home.

Katana said it’s better for Uganda to look at other alternatives for instance biomedical tools, medical male circumcision and condoms. –

Published in New Vision on Dec 1, 2016

Canada: Ministry of Justice recognises the negative impact of the over-criminalization of HIV non-disclosure

Minister Wilson-Raybould Issues Statement on World AIDS Day

December 01, 2016 (Ottawa, ON) – Department of Justice Canada

The Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, today issued the following statement:

World AIDS Day is a time to reflect on the impact that HIV/AIDS has had on Canadians, and to give thanks to the many dedicated people who work to prevent this disease and help people get the care and support they need.

It is also a time to recognize the tremendous medical advances that have been made since the first World AIDS Day was held in 1988. HIV treatment has slowed disease progression to the point that, for many, HIV infection can now be regarded as a chronic, manageable condition.

Still, 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. Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.

Over the coming months, I intend to work with my provincial and territorial counterparts, affected communities and medical professionals to examine the criminal justice system’s response to non-disclosure of HIV status. This could include a review of existing charging and prosecution practices, as well as the possible development of prosecutorial guidelines. I also look forward to working with Member of Parliament Randy Boissonnault, Special Advisor to the Prime Minister on LGBTQ2 issues, in his continued efforts to engage Canadians on important issues such as this one.

On World AIDS Day, we should all share in the commitment to reduce stigma and discrimination against those living with HIV or AIDS.

Contacts

Valérie Gervais

Press Secretary

Office of the Minister of Justice

613-992-4621

Media Relations

Department of Justice Canada

613-957-4207

media@justice.gc.ca

Canada: Guidelines on prosecuting HIV non-disclosure in Ontario to be released

The Divisional Court has ordered the Ministry of the Attorney General to release a set of draft guidelines for prosecuting HIV non-disclosure cases.

An assistant Crown attorney developed the guidelines in the unprecedented 2009 case of Johnson Aziga, an HIV-positive man who was convicted of first-degree murder for failing to disclose his status when he had unprotected sex with two women.

The guidelines were shared throughout the province with Crowns involved in HIV prosecutions and uploaded to their intranet, says Toronto lawyer Marcus McCann, who sought the document as part of a larger Freedom of Information request.

The ministry refused to grant McCann’s request, arguing the guidelines were subject to solicitor-client privilege, but the Information and Privacy Commissioner sided with McCann.

“The fundamental unfairness that motivated me was that MAG has been able to avoid disclosure of this document simply by allowing Crowns to use this document created off the side of the desk without adopting it as official policy,” McCann says.

MAG sought judicial review of the privacy commissioner’s decision, but it was recently rejected by the Divisional Court.

The privacy commissioner, and later the Divisional Court, determined that solicitor-client privilege had actually been waived by the assistant Crown attorney who developed the draft guidelines, as they had been shared with a program manager with the Sexual Health and Harm Reduction of the City of Hamilton.

MAG said the document was shared with the official in order to get her “expert input, advice and assistance in relation to legal advice” in the guidelines, and it said that her input was necessary in order to ensure the document was accurate.

MAG also argued that the commissioner erred by failing to consider whether the ministry and the program manager had common interests, which would have preserved solicitor-client privilege. The ministry said the common interest was the reduction of harm and the protection of society, but the Divisional Court sided with the privacy commissioner, who said that interest was too broad and that the two entities have very different practical mandates.

“The Commissioner’s rejection of the common interest was reasonable. The result is justified, transparent and intelligible,” Justice Carolyn Horkins wrote in the Divisional Court decision, Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), which was released on Nov. 15.

It is not clear whether the provincial government plans to appeal the decision, but McCann says that if and once the document is released, it could help those being prosecuted in HIV-related cases understand how Crown prosecutors are approaching these matters.

For years, AIDS services organizations have pushed the provincial government to develop an official set of guidelines for prosecuting HIV non-disclosure cases, but with little progress. Between 1989 and 2013, around 155 people were criminally charged in Canada for not disclosing they had HIV and a majority of these prosecutions occurred in Ontario, according to the Canadian HIV/AIDS Legal Network.

Human rights lawyers say the problem with the lack of official guidelines for these HIV non-disclosure cases is that there is such a wide scope of charges defendants can face, some of which are very serious.

Ryan Peck, the executive director of HIV & AIDS Legal Clinic Ontario, says those prosecuted in these cases often face aggravated sexual assault charges, which are used to prosecute serious forced sex acts.

In 2010, a group called the Ontario Working Group on Criminal Law and HIV Exposure launched a campaign calling on MAG to create a set of prosecutorial guidelines. The ministry agreed to do so, but after years of consultations and delays, an official set of guidelines has not materialized yet.

“The current use of the criminal law is simply out of step with science and human rights,” Peck says. A handful of lawyers, including Peck, on the working group were allowed to review draft guidelines in November 2014. It is unclear whether these are the same draft guidelines McCann requested, as the lawyers who reviewed the guidelines are not permitted to discuss their contents.

The lawyers who viewed the draft guidelines asked that the ministry not issue the guidelines, and MAG complied with that request. The working group plans to meet with Attorney General Yasir Naqvi at a “minister’s roundtable” discussion, which is set to take place Dec. 5.

“They appear to be at loggerheads on the issue of not just should prosecutorial guidelines be drafted but what the content of them should be, and it’s my hope that this document being made public will help break that logjam,” says McCann.

Brendan Crawley, a spokesman for MAG, said it would be inappropriate for the ministry to comment, as the Divisional Court’s decision is still within the appeal period.

Published in Law Times on Nov 28, 2016

Canada: UN experts recommends that Canada review its criminal laws to prevent unjust prosecutions of people living with HIV

UN experts make historic recommendations to Canada: End unjust HIV criminalization, repeal law restricting supervised consumption services, and implement needle and syringe programmes in prison

By AIDSLAW | Published: NOVEMBER 18, 2016

GENEVA, November 18, 2016 — The United Nations Committee on the Elimination of Discrimination against Women issued its Concluding Observations today following its review of Canada’s compliance with the Convention on the Elimination of All Forms of Discrimination against Women. This is the first time the Committee reviewed women’s rights in Canada since 2008.

Documents can be downloaded here

Canada: HIV activists form national coalition to lobby for an end to the criminalisation of people living with HIV

HIV activists form Canadian coalition to fight criminalization

Aggravated sexual assault convictions for HIV non-disclosure are unjust, members say.

A group of HIV activists, lawyers, and service providers from across Canada have formed a national coalition to call for an end to the criminalization of people living with HIV.

The Canadian Coalition to Reform HIV Criminalization, years in the making, will lobby nationally for people who have been charged for not disclosing their HIV status. Up until now, this work was only done locally and provincially, and mostly by lawyers rather than people most affected by the law.

“We have an amazing expert community of lawyers working on this issue,” says Alexander McClelland, a Montreal-based HIV criminalization researcher and member of the coalition. “But lawyers talk to other lawyers and haven’t been engaged more broadly. So hopefully we can shift things with the way the coalition is organized. We’re really centrally placing lived experience of people on our steering committee.”

Under Canadian law, a person living with HIV must disclose their status to anal and vaginal sexual partners or face the charge of aggravated sexual assault, which carries a maximum lifetime sentence and registry as a sex offender. This standard was most recently upheld in a 2012 Supreme Court of Canada ruling based on outdated science. The court ruled that to be considered safe enough not to disclose, HIV carriers must have very low viral load and wear condoms. Research now shows, however, that low viral load itself is enough to be nearly perfectly safe.

Coalition members met in October after many attended the HIV Is Not A Crime 2 Training Academy in Huntsville Alabama. Realizing the national level of organization in the United States led by people who have been charged and convicted, the attendees realized Canada needed something similar.

The coalition wants to limit prosecutions to intentional transmissions of HIV. Of over 180 known HIV prosecutions in Canada since the discovery of the virus as the cause of AIDS, there have been just two known intentional transmissions, according to Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network.

The large percentage of unjust prosecutions in Canada, she says, has a chilling effect on people living with the virus.

“Many [HIV positive] people fear being prosecuted, of that happening to them at some point, like an old partner coming back to them and saying things that may not be true but it’s one word against another.”

The law is constructed to protect the sexual autonomy of women, Kazatchkine says, but it can often have the opposite effect on many HIV-positive women living in abusive relationships who fear their partners could use their status against them if they tried to leave.

“There’s a climate of fear and uncertainty that guides everything that we do and so it would be great to intervene in that and change the current situation,” adds McClelland, who lives with HIV.

Though still in its early stages, the coalition is concentrating on three areas: involving the lived experiences of those who live with the virus and have been criminally charged, lobbying provincial and federal politicians to change the Criminal Code and how it is enforced, and publicizing unjust prosecutions.

The group is also working on specific demands for the federal government, which writes the criminal law, and for provincial governments, which administer the law through the courts.

McClelland says coalition members have spoken to Minister of Justice Jody Wilson-Raybould, which he finds promising, since no such meeting took place under the previous Conservative government.

“It’s also really, really hard to get the Criminal Code reformed,” he notes, “but if we can appeal to members of parliament that it’s being applied so unjustly, then potentially there’s an option for that.”

Published in DailyXtra on Nov 14, 2016

US: Idaho activists are looking to reform Idaho's HIV Criminalisation laws

Local activists are looking to reform and modernize Idaho’s code on the transfer of bodily fluid containing HIV or AIDS virus. The law was created in the 1980’s, a time when HIV and AIDS was a rising issue in the country. In the last 10 years, 32 people have been charged under the law. Activists and health officials say scientifically its outdated.

In 1988 Idaho created a law to punish anyone HIV positive, who transferred their body fluids with intentions to expose or infect someone else. Ian Troesoyer a Registered Nurse and Epidemiologist at Southeast Idaho Public Health says,”Singling out HIV from a biological perspective it doesn’t make perfect sense. But in the 1980s when the law was created there was a lot more fear and greater lack of knowledge regarding the transmission.”

Under the code body fluids are: Semen, blood saliva, vaginal secretion, breast milk and urine. But 28 years later health experts say, “So saliva and urine, saliva in particular, they are not known to transmit HIV.” Which is why local activists in Pocatello want to modernize Idaho Code 39-608. Kevin Lish the Board Chair of All Under One Roof says, “These laws come down a lot of times to a ‘He said, she said’ situation.”

The crime carries a maximum of 15 years in prison. In the last decade 12 people across the state have been convicted including a man named Kerry Thomas. He’s serving 30 years for not telling his partner. He says in a video posted on SEROProject.com, “I’m glad that she, three years down the road… she’s not positive.”

Health experts and activists say with an outdated law, there’s a stigma associated with the disease that could increase people’s risks. Lish says, “We have the tools to get to an HIV free generation. One of the things we need to do is update laws like this so people feel good about being tested and are getting tested when they need to.”

Activists say speaking to legislators about changing the law will take years. Educating the public is their first mission before heading to the capitol steps in Boise. On National AIDS Awareness Day, All Under One Roof will host an event on December 1^st at 234 North Main Street at 7 p.m. There they will educate the public on the statue, and how they’d like to change it.

On Friday November 11, representatives will speak with Elizabeth Taylor’s granddaughter in Boise about how the Elizabeth Taylor’s AIDS Foundation can help their cause.

Published on KPVI on Nov 10, 2016

US: Movement to reform Michigan's HIV-specific law is gaining momentum

A movement to reform Michigan’s HIV-specific law is gaining momentum in the state House. Activists report a lobby day last month has garnered eight co-sponsors for the legislation, proposed by Rep. Jon Hoadley, D-Kalamazoo.

The legislation is being promoted by the grassroots organization Michigan Coalition for HIV Health and Safety.

“The coalition is excited to have the support and sponsorship of our modernization bill from eight of our Michigan state representatives, but we have a long way to go,” said Kelly Doyle, Coalition Manager. “We need activists and volunteers willing to talk to elected officials about the harm and threat to public health these laws are creating.”

In addition to Rep. Jon Hoadley, D-Kalamazoo, the bill’s author and lead sponsor, state representatives who have all agreed to sign on as co-sponsors include: Reps. Andy Schor, D-Lansing; Tom Cochran, D-Lansing; Jeremy Moss, D-Southfield; David LaGrand, D-Grand Rapids; George Darany, D-Dearborn; LaTanya Garrett, D-Detroit; and Robert Wittenberg, D-Oak Park. Advocates will be gathering at least five more co-sponsors before Hoadley introduces the legislation.

The legislation would change Michigan’s HIV-specific law from a felony to a misdemeanor and provide legal structure around prosecutions which would require prosecutors to prove beyond a reasonable doubt that the accused intended to transmit the virus and took actions which had a significant likelihood of transmission. Those who are proven to have intended to transmit the infection and actually did would face up to one year in jail; those who intended to transmit the infection but didn’t would face up to 93 days in jail.

Key to the modernization is a requirement that prosecutors and courts take into account current science about HIV transmission. Studies have shown that a person who is HIV-positive but successfully treating their infection with antiretroviral drugs so the virus is not detectable in their blood are extremely unlikely to transmit the infection. However, Michigan’s law currently does not allow this information as a defense.

Michigan’s law, passed in 1988, requires those who know they are infected with HIV to disclose that status prior to any sexual penetration, “however slight.” The law came out of a Republican House Task Force Report on AIDS in 1987 which wanted to stop those persons “who would deliberately or recklessly expose others to the infection.” Studies of the impact of Michigan’s law have found that behavior that is unlikely to transmit the infection has resulted in prosecutions. In addition, there appears to be a racial disparity in prosecutions focusing on black men who have sex with women. And finally, there is evidence that the law has become a weapon for domestic abusers as a way to control their intimate partners. Additional studies have found a small, but significant, minority of people at high risk for HIV infection are less likely to be tested for or discuss their risk for infection with medical providers because of such laws.

“This is an important modernization and is needed to protect the health and safety of everyone in Michigan,” said Hoadley. “Our laws are out of date. This effort would align our laws with modern HIV science, keep our communities safe and recognize the lived experiences of people living with HIV.”

Activists will lobby lawmakers again on Nov. 10 and Dec. 6 in Lansing from 9 a.m. to 4 p.m. each day. They will start the day at the ninth floor conference room of the House Office Building, 124 North Capital Ave., Lansing. For more information email Todd@MCHHS.info or visit MCHHS.info.

Australia: Australian experts publish statement urging courts to consider current scientific evidence in criminal cases involving alleged HIV transmission or exposure

A group of leading HIV experts are calling for “caution to be exercised” when considering criminal charges against people who recklessly spread the disease.

In a consensus statement published in the Medical Journal of Australia, Australian researchers and scientists — including Professor Sharon Lewin and Professor Andrew Grulich — argue that “criminal cases involving HIV transmission or exposure require that courts correctly comprehend the rapidly evolving science of HIV transmission and the impact of an HIV diagnosis”.

The statement cites scientific evidence that shows the risk of HIV transmission to be negligible if a person is on treatment and has an undetectable viral load. It also claims that HIV isn’t as serious a condition as it used to be: “Most people with HIV are able to commence simple treatment providing them a normal and healthy life expectancy, largely comparable with their HIV-negative peers.”

“Given the limited risk of HIV transmission per sexual act and the limited long-term harms experienced by most people recently diagnosed with HIV, appropriate care should be taken before prosecutions are pursued,” says the statement.

While acknowledging that cases of deliberate transmission of HIV are “extremely unusual”, the group urge authorities to change behaviours through counselling rather than the courts.

“Careful attention should be paid to the best scientific evidence on HIV risk and harms, with consideration given to alternatives to prosecution, including public health management.”

The statement has been welcome by HIV advocacy groups.

“It’s incredible to see these experts come together and make a bold statement regarding HIV and the law,” said Richard Keane, President of Living Positive Victoria.

“The impact of HIV criminalisation or even the threat of it is a dangerous form of stigma and we’re still feeling the ripple effect more than two decades later.”

There have been at least 38 Australian criminal prosecutions for HIV sexual transmission or exposure since 1991.

“You don’t have to be convicted or even prosecuted for HIV criminalisation to affect you,” said Keane.

“The HIV community lives with the threat that a complaint can be made against us and the stigma that criminal prosecutions amplify and perpetuate.”

Keane hoped the statement’s focus on utilising the public health system rather the criminal courts in dealing with behaviour change would lead to better outcomes on policy.

“Most people on treatment are able to achieve an ‘undetectable’ viral load which makes it highly likely that the person will remain healthy and pose a negligible risk of transmitting HIV,” Keane said.

“The evidence outlined in this statement shows that the per-act risk of HIV transmission from even the most risky sex is still low. The message should be to encourage individuals to take care of their health and eliminate barriers to accessing treatment rather than intimidation through the justice system.

“By focusing on what the studies and science is telling us about treatments, relative risk and harm, that’s how we reduce HIV transmission whilst protecting the rights and dignity of people living with HIV. HIV is a health issue, not a criminal justice issue.”

Additional reporting Positive Living.

Published in Gay News Network on Nov 6, 2016