Dear subscribers, We are delighted to share issue 2 of the Global Commission on HIV and the Law Newsletter – Issue 2 for 2013. Since the last Newsletter was released, there have been a number of significant developments on HIV and the law some of which are briefly described below in digest format.
United States Conference of Mayors calls for “the elimination of HIV-specific criminal laws”
Today, the U.S. Conference of Mayors passed a resolution calling for “the elimination of HIV-specific criminal laws and implementation of approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of similar health and safety risks.”
It goes on to support the REPEAL HIV Discrimination Act and endorses the recommendations of the Presidential Advisory Council on HIV/AIDS for ending federal and state HIV-specific criminal laws, prosecutions, and civil commitments.
Full text below.
HIV DISCRIMINATION AND CRIMINALIZATION
WHEREAS, The U.S. Conference of Mayors has been a national leader on strategies to address HIV/AIDS for three decades, establishing in 1984 an HIV/AIDS Program and implementing a HIV/AIDS Prevention Grants Program with funding from the Centers for Disease Control and Prevention (CDC); and
WHEREAS, The National HIV/AIDS Strategy (NHAS) released by the White House includes a statement on the problem and public health consequences of HIV criminalization and notes that many state HIV-specific criminal laws reflect long-outdated misperceptions of HIV’s modes and relative risks of transmission; that criminal law has been unjustly used in the United States to prosecute and disproportionately sentence people with HIV; and that legislators reconsider whether these laws further the public interest and support public health approaches to preventing and treating HIV; and
WHEREAS, nearly all HIV-specific criminal laws do not consider correct and consistent condom use and effective antiretroviral therapy that reduces the risk of HIV transmission to near-zero as evidence of a lack of intent or ability to harm; and behaviors that according to the Centers for Disease Control and Prevention (CDC) have negligible risk of transmitting HIV, such as spitting and biting, have resulted in sentences as long as 35 years: and
WHEREAS, sound criminal justice and public health policy toward people living with HIV is consistent with an evidence-based approach to disease control and research demonstrates that HIV-specific laws do not reduce transmission or increase disclosure and may discourage HIV testing; and
WHEREAS, The Presidential Advisory Council on HIV AIDS, the Centers for Disease Control, and the United Nations Global Commission on HIV and the Law have conducted extensive scientific research and evidence reviews, finding that public health is endangered by HIV discrimination and criminalization and calling for comprehensive revision of state and federal laws and regulations,
NOW, THEREFORE, BE IT RESOLVED, that the U.S. Conference of Mayors calls for the elimination of HIV-specific criminal laws and implementation of approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of similar health and safety risks; and supports legislation, such as the REPEAL HIV Discrimination Act, that advances these objectives: and
BE IT FURTHER RESOLVED, that the U.S. Conference of Mayors endorses the recommendations of the Presidential Advisory Council on HIV/AIDS for ending federal and state HIV-specific criminal laws, prosecutions, and civil commitments.
Projected Cost: Unknown
US Conference of Mayors HIV Criminalization Resolution, June 25 2013
US: Congress passes amendment allowing for review of US military policy on HIV non-disclosure/exposure prosecutions
A bipartisan amendment to the National Defense Authorization Act approved by the House Thursday evening requires the Department of Defense to conduct an internal review of policies and prosecutions related to military members living with HIV. Currently the military can try service-members with HIV under a variety of charges, including failing to obey an order for having unprotected sex, not disclosing an HIV-positive status, or for aggravated assault, wherein HIV is the factor for the more serious charge.
The amendment by Reps. Barbara Lee (D-Calif.) and Ileana Ros-Lehtinen (R-Fla.) is the first time Congress has voted on HIV-criminalization matters since the passage of the 1990 Ryan White CARE Act, which required states to certify they had a process to prosecute deliberate transmission of HIV. Rep Lee issued the following statement on the adoption of the amendment:
I’m so pleased that this is a bi-partisan effort and am proud that my colleague Congresswoman Ileana Ros-Lehtinen has joined me in this effort. Modernizing laws when it comes to our military is essential, and the laws that dictate the lives of our service members should reflect contemporary understanding of the science of HIV. I’m proud that the House has recognized this essential piece of working towards an AIDS-free generation, and my amendment would take an important first step in ensuring that our laws reflect current scientific understandings of HIV.
The two lawmakers are also co-sponsors of the Repeal HIV Discrimination Act, which would push states to repeal HIV-specific statutes in favor of laws that would only allow prosecution against HIV-positive persons if there is evidence of intent to infect and/or actual harm caused.
The amendment requires the Defense Department to issue a report no later than 180 days after the bill is signed into law. This report would have to demonstrate that prosecutions related to HIV exposure and transmission are based on a medically accurate understanding of the infection and treatment. It would also require the U.S. Military to review all recent prosecutions and make recommendations to improve the system to ensure that prosecutions are based on scientifically accurate risks.
US: LA Times publishes editorial in favour of REPEAL Act, highlights spitting and biting prosecutions
A bipartisan bill introduced in the House calls for a review of state laws that criminalize behavior by people with HIV, including many laws that seem anachronistic or inappropriate given what has been learned during the last three decades about the transmission and treatment of the virus that causes AIDS. The bill should be passed.
The Repeal HIV Discrimination Act of 2013, introduced by Reps. Barbara Lee (D-Oakland) and Ileana Ros-Lehtinen (R-Fla.), would not by itself repeal any state laws. The federal government can’t do that. But the bill would encourage state governments to repeal laws that are based on outdated fears. It is backed by the Presidential Advisory Council on HIV/AIDS and is in line with the UN’s stand that criminalization should be limited to cases in which a person knows he or she has HIV, intends to transmit it and successfully does so.
There are HIV-specific criminal statutes on the books in 32 states, and some are fairly common sense. In California, which has one of the better laws, people who know they are HIV positive must disclose that fact to their sex partners before having unprotected sex. If they do not, and if they “act with intent to infect,” they may be charged with a felony.
But 13 states have laws that make it a crime for an infected person to spit at, bite or throw their blood on others. That might have seemed reasonable at the height of the panic over AIDS, but we now know it is not. According to the Centers for Disease Control and Prevention, only blood, semen, vaginal secretions and breast milk can transmit the virus. And to do so, they must come in contact with a mucous membrane or damaged tissue or be injected into the bloodstream. Saliva does not transmit HIV. It is extraordinarily rare for a human bite to transmit HIV.
In the last few years, there have been dozens of cases documented by the Center for HIV Law and Policy in which people have been charged with criminally transmitting HIV by biting or spitting (even though no transmission occurred) or convicted of failing to disclose to a sexual partner that they were HIV positive (even if the virus was not transmitted). In some states, people with these convictions have to register as sex offenders.
Though treatment has come a long way, HIV is still an extremely serious and basically incurable virus, and the House bill would not stop the prosecution of people who deliberately (and successfully) infect others. It is certainly wrong for infected people to cavalierly or maliciously have sex without disclosing their HIV-positive status and without taking precautions against transmitting the virus. But there is no reason to keep the laws against spitting and biting on the books. They are based on fears that have since been disproved by science.
GNP+ and the HIV Justice Network release ‘Advancing HIV Justice: a progress report of achievements and challenges in global advocacy against HIV criminalisation’
A new report released today by the Global Network of People Living with HIV (GNP+) and the HIV Justice Network highlights the tireless work of advocates around the world challenging inappropriate criminal laws and prosecutions for HIV non-disclosure, potential or perceived exposure and transmission.
Advancing HIV Justice shows that advocates around the working to repeal, modernise or otherwise limit laws and policies that inappropriately regulate and punish people living with HIV have achieved considerable success. This is especially the case when policymakers or criminal justice system actors are open to learning more about scientific and medical advances in HIV prevention, treatment, care and support, and involve civil society – led by people living with HIV – to ensure that critical criminal law and human rights principles are followed.
“That is why we welcome the new, detailed guidance on limiting overly broad HIV criminalisation that was released last week by UNAIDS,” says Kevin Moody, International Coordinator and CEO of GNP+. “The guidance will help to continue advancing HIV justice, serving as a powerful new tool for people living with HIV, and those advocating on our behalf, in our work with policymakers and criminal justice system actors.”
Writing in the foreword, Susan Timberlake, Chief, Human Rights and Law Division, UNAIDS Secretariat, notes that Advancing HIV Justice “powerfully demonstrates that civil society advocacy on this issue is not only alive – it goes from strength to strength.”
In the 18-month period covered by the report (September 2011 to March 2013), significant advances were made in terms of:
- building the global evidence base in order to better understand the ‘who, what, where, when and why’ of laws and prosecutions around the world;
- generating persuasive social science that shows exactly why overly broad HIV criminalisation does more harm than good, often achieving exactly the opposite of what law- and policymakers intend in terms of public health and human rights;
- challenging inappropriate or overly broad new laws in Africa, Asia, the Caribbean, Latin America and the United States;
- advocating for law reform in Europe and the United States, including successful repeal in Denmark and modernisation of one of Switzerland’s two laws used to prosecute potential or perceived HIV exposure; and
- addressing legal processes and enforcement, including the creation of prosecutorial guidelines in Scotland.
However, the report also highlights that the road to law and policy reform is not always straightforward or easy, due not only to complex intersections of laws, policies and practices, but also because of each country’s unique social, epidemiological and cultural contexts.
“Despite the many incremental successes of the past 18 months, more work and more funding is required to strengthen advocacy capacity,” says the HIV Justice Network’s co-ordinator, Edwin J Bernard, who co-authored the report with Sally Cameron. “HIV criminalisation is a complex issue. It entails a detailed understanding of diverse aspects of the criminal justice system; collection and analysis of evidence of the scope and impact of prosecutions across local and national boundaries; articulation and argument about complex moral and ethical issues of trust, blame and responsibility; and inclusion of HIV prevention and human rights priorities. Development of strategies against HIV criminalisation relevant to each individual jurisdiction requires time, effort, and the involvement of multidisciplinary experts.”
Advancing HIV Justice: A progress report of achievements and challenges in global advocacy against HIV criminalisation is available as a 52 page pdf that can be read or downloaded at: http://www.advancing.hivjustice.net
UNAIDS launches first-ever Judicial Handbook on HIV, Human Rights and the Law: Interview with UNDP's Mandeep Dhaliwal
The meeting also looked at specific actions that can be taken by Judges, to create a more supportive environment for people with HIV and key populations that are at-risk. UNAIDS also launched the first-ever Judicial Handbook on HIV, Human Rights and the Law at the meeting.
UNDP releases collation of progressive jurisprudence on HIV, Human Rights and the Law
The Compendium of Judgments, HIV, Human Rights and the Law, is a collation of progressive jurisprudence on HIV-related matters that highlights how the law has been used to protect individual rights. The compendium presents a user-friendly compilation of judgments from different national and regional jurisdictions.
UNDP releases report highlighting experiences and lessons learned from national HIV laws in Asia and the Pacific
This report is a direct follow-up to Global Commission on HIV and the Law: Risks, Rights and Health (July 2012) and the Asia-Pacific Regional Dialogue of the Global Commission on HIV and the Law convened in Bangkok in February 2011.
Canada: HIV groups upset because attorney general has no plans to consult them on prosecutorial guidelines
The Ontario government is writing guidelines for criminal prosecutions of HIV-positive people who don’t disclose their status before having sex, according to the Ministry of the Attorney General.
Arwel Jones introduces ‘Doing HIV Justice’ (Berlin, September 2012)
Arwel Jones, Head of the Law & Procedure Unit at the Crown Prosecution Service Strategy & Policy Directorate introduces the documentary ‘Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance’ ‘ at the workshop ‘How to advocate for prosecutorial guidelines’ held during a one-day seminar on HIV criminalisation in Berlin on 20 September 2012.
The seminar took place on the occasion of the twentieth anniversary of the European AIDS Treatment Group (EATG). The meeting was co-organised with Deutsche AIDS-Hilfe, the International Planned Parenthood Federation, and HIV in Europe, a multi-stakeholder initiative exchange on activities to improve early diagnosis and earlier care of HIV across Europe.
Video produced by Nicholas Feustel, georgetown media, for the HIV Justice Network.