UK: NAT (National AIDS Trust) produces new guide for police on occupational exposure to HIV

NAT (National AIDS Trust) is calling on all UK police forces to ensure their guidance and policies on HIV are up-to-date – and to use NAT’s new resource ‘HIV: A guide for Police Forces’ for this purpose.

“HIV: A guide for police forces” is endorsed by BHIVA (the British HIV Association) and includes information about how HIV is and isn’t transmitted, what to do if you are exposed to HIV, how to respond to someone with HIV, and information about criminal prosecution for HIV transmission. It also includes an easy-to-use check-list to ensure blood borne virus training and occupational health policies are fit for purpose and up-to-date.

The guide was produced in response to a review of a sample of policies and guidelines from 15 police constabularies out of the 50 in the UK, revealed in a 2012 report. NAT found some forces wrongly cited spitting, scratching, urine, sharing toothbrushes and handling or lifting of people as routes to transmission and also found policies recommending the use of “spit hoods” to protect police from HIV transmission, or stating that people living with HIV and in custody should be held separately and that interviews should be conducted through cell doors or cell door hatches.

The guide is especially targeted at police occupational health trainers, health and safety officers and medical advisers in police forces to improve existing HIV training and guidance. Advocates working with police in jurisdictions around the world may also find this guide useful as a way to encourage the police to update their training and improve the way they treat people living with HIV.

“By producing this guidance we have given police forces the information and evidence they need to ensure their policies and procedures on dealing with HIV are up-to-date and non-stigmatising and to help reduce unnecessary worry about HIV transmission amongst police officers.  We are now calling on them to make sure it is put into practice.”

Deborah Jack, Chief Executive of NAT

HIV: A Guide For Police Forces

UNAIDS publishes updated, detailed guidance on HIV criminalisation

Today, the Joint United Nations Programme on HIV/AIDS (UNAIDS) publishes its long-awaited updated guidance to limit the overly broad use of criminal laws to regulate and punish people living with HIV who are accused of HIV non-disclosure, exposure and/or transmission. The guidance aims to ensure that any application of criminal law in the context of HIV achieves justice and does not jeopardise public health objectives.

In a note accompanying the release, UNAIDS’ Executive Director, Michel Sidibé, states:

As I highlighted in my opening remarks [at the High Level Policy Consultation on criminalization of HIV Non-disclosure, Exposure and Transmission co-hosted by UNAIDS and the Government of Norway on 14-15 February 2012] in Oslo, the overly broad criminalisation of HIV non-disclosure, exposure and transmission at best indicates a lack of understanding of the science of HIV, at worst comprises an expression of discrimination against people living with HIV.  Such overly-broad laws not only lead to miscarriages of justice, but also threaten our efforts to address HIV in an effective and rights-based manner.

Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations is the result of a two year project involving research, evidence-building and policy dialogue, comprising:

  • The development of background and technical papers on current laws and practices, as well as recent medical and scientific developments relevant to HIV criminalisation;
  • An Expert Meeting in Geneva, Switzerland (31 August to 2 September 2011) bringing together leading scientists, medical practitioners and legal experts to consider the latest scientific and medical facts about HIV to be taken into account in the context of criminalisation; to explore how to best address harm, risk, intent, proof, and sentencing; and to consider alternative responses to criminalisation, in light of scientific and medical advances; and
  • A High Level Policy Consultation in Oslo, Norway (14 -15 February 2012) that gathered policy-makers, experts in HIV science, medicine and human rights and members of civil society, including people living with HIV, from around the world to discuss options and recommendations for addressing overly broad HIV criminalisation.

The new guidance reiterates the positions previously stated in the 2008 Policy Brief issued by UNAIDS and the United Nations Development Programme  (UNDP) and the recommendations of the Global Commission on HIV and the Law, to limit the application of criminal law 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) and that general – and not HIV-specific – laws should be used for these extremely rare occasions.

It also stresses that because overly broad HIV criminalisation raises serious human rights and public health concerns, rather than relying on laws, investigations, prosecutions and imprisonment, resources should focus on “expanding the use of proven and successful evidence-informed and rights-based public health approaches to HIV prevention, treatment and care, and limit any application of criminal law to truly blameworthy cases where it is needed to achieve justice. States should strengthen HIV programmes that enable people to know how to protect themselves from HIV and to avoid transmitting it, and they should help people access the services and commodities they need for HIV prevention, treatment, care and support.”

Mindful that this ideal cannot be achieved in the short-term, UNAIDS then provides detailed and specific “considerations and recommendations” to address how the criminal law is currently applied to HIV non-disclosure, exposure or transmission. “It offers these to help governments, policy-makers, law enforcement officials, and civil society—including people living with HIV—to achieve the goal of limiting and hopefully ending the overly broad application of criminal law to HIV. These considerations and recommendations are also provided to help ensure, to the best degree possible, that any application of criminal law in the context of HIV achieves justice and does not undermine public health.”

There are three main princples behind the guidance. The use of criminal law in relation to HIV should

  1. be guided by the best available scientific and medical evidence relating to HIV,
  2. uphold the principles of legal and judicial fairness (including key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof), and
  3. protect the human rights of those involved in criminal law cases.

The guidance then provides detailed considerations and recommendations, with regard to

  • the assessment of the harm caused by HIV

In the absence of the actual transmission of HIV, the harm of HIV non-disclosure or exposure is not significant enough to warrant criminal prosecution. Non-disclosure of HIV- positive status and HIV exposure should therefore not be criminalised.

  • the assessment of the risk of HIV transmission

Where criminal liability is extended to cases that do not involve actual trans- mission of HIV, such liability should be limited to acts involving a “significant risk” of HIV transmission. The determination of whether the risk of HIV transmission from a particular act is significant should be informed by the best available scientific and medical evidence.

  • the assessment of the mental culpability of the person accused

Any application of criminal law to HIV non-disclosure, exposure or transmission should require proof, to the applicable criminal law standard, of intent to transmit HIV. Intent to transmit HIV cannot be presumed or solely derived from knowledge of positive HIV status and/ or non-disclosure of that status and/or from engaging in unprotected sex, having a baby without taking steps to prevent mother-to-child transmission of HIV, or by sharing drug injection equipment.

  • the determination of defences to prosecution or conviction

Disclosure of HIV-positive status and/ or informed consent by the sexual partner of the HIV-positive person should be recognized as defences to charges of HIV exposure or transmission. Because scientific and medical evidence demonstrates that the risk of HIV transmission can be significantly reduced by the use of condoms and other forms of safer sex—and because these behaviours are encouraged by public health messages and HIV prevention strategies that should not be undermined—condom use or the practice of other forms of safer sex (including non-penetrative sex and oral sex) should be recognized as defences to charges of HIV non- disclosure, exposure or transmission. Effective HIV treatment or low viral load should be recognized as defences to charges for HV non-disclosure, exposure or transmission.

  • the assessment of elements of proof

As with any crime, all elements of the offence of HIV non-disclosure, exposure or transmission should be proved to the required criminal law standard. HIV phylogenetic evidence alone is not sufficient to establish, to the required criminal law standard, that one person did infect another person with HIV.

  • the determination of penalties following conviction for HIV non-disclosure, exposure or transmission

Any penalties for HIV non-disclosure, exposure or transmission should be proportionate to the state of mind, the nature of the conduct, and the actual harm caused in the particular case, with mitigating and aggravating factors duly taken into account.

  • prosecutorial guidelines

Countries should develop and implement prosecutorial and police guidelines to clarify, limit and harmonise any application of criminal law to HIV. The development of such guidelines should ensure the effective participation of HIV experts, people living with HIV, and other key stakeholders. The content of these guidelines should reflect the scientific, medical and legal considerations highlighted in the present document.

The entire guidance is available below, and can be downloaded here.

Switzerland: Swiss Federal Supreme Court rules that criminal HIV exposure or transmission is no longer necessarily a serious assault

The Swiss Federal Supreme Court has ruled that HIV infection may no longer be automatically considered a serious assault, due to improved outcomes in life-expectancy on antiretroviral therapy.

A news article on the ruling, featuring Groupe sida Genève‘s spokesperson, Deborah Glejser, appeared (in French) in yesterday’s Le Temps.

Case 6B_337/2012 was heard on 19th March 2013 and published on Wednesday.  This note, written by Sascha Moore of Groupe sida Genève, explains the ruling in detail.

In a recent ruling, the Swiss Federal Supreme Court revisited its long standing jurisprudence on the severity of an HIV infection. Since 1999 (BGE 116 IV 125), any transmission or attempted transmission of HIV has been deemed to inflict or attempt to inflict severe harm and qualifies thus as an offence under article 122 of the Swiss Criminal Code relating to serious assault.

The appellant had appealed his conviction by the Superior Court of the Canton of Zurich under both article 122 and article 231 of the criminal code pertaining to transmission of human diseases for transmitting HIV to a sexual partner. The Superior court had imposed a 30 month partially suspended custodial sentence.

In the third part of his appeal, the appellant objected to the qualification of transmission of HIV as a serious injury on the grounds that, although still an incurable chronic medical condition, HIV infection is well managed thanks to current medical treatment. Life expectancy of individuals living with HIV is now nearly equal to those of persons not infected and as a result of this progress transmission should only qualify as common assault under article 123 of the criminal code.

The Federal Court agreed with the appellant to the extent that recent scientific progress and current treatment options lead to the conclusion that HIV infection does not necessarily constitute a serious threat to life. The Court nevertheless held that HIV infection still causes complex and life-long physiological and psychological changes which in some cases may lead to serious or even life threatening harm.

The ruling in effect overruled the Federal Court’s own jurisprudence that held that HIV infection is a serious injury that qualifies as serious assault and allows a finding of serious assault only if the facts of the case warrant. It thus imposes a duty on lower courts to determine in every case brought before them whether the transmission or attempted transmission qualifies as common assault under article 123 or rather as serious assault under article 122 of the criminal code.

Serious assault is punishable with a custodial sentence not exceeding 10 years, whereas the maximum sentence for common assault is 3 years. The courts reversal will certainly limit some sentences to the maximum of 3 years for common assault whereas the average sentence for HIV transmission or attempted transmission had previously varied from 2 to 4 years in cases where 122 and 231 were applied concurrently.

As opposed to serious assault which is prosecuted ex officio (without complaint), common assault is prosecuted ex officio only for those exceptions provided in paragraph 2 of article 123 that cover use of poison or weapons, assault on persons in the care of the accused or unable to defend themselves and finally assault on spouses, registered partners or cohabitating partners.

The Federal Court rejected the appellant’s other contentions that the lower court had arbitrarily rejected the appellant’s defence invoking the victim’s consent to unprotected sexual relations as well as that the Court had erred in determining that the appellant was indeed the person who infected the victim. The Court did not follow the appellant’s argument there was sufficient doubt as to the victim’s testimony to benefit the accused.

The case is remanded to the Superior Court for a fresh determination whether the conduct in question may be qualified as common or serious assault.

 

No increase in risk of death for patients with well-controlled HIV

The study suggests that patients with undetectable viral loads and near-normal levels of immune cells on state-of-the art antiretroviral therapy (ART) can expect to have about the same risk of death as people without HIV. The article is available on the AIDS journal homepage and in the March 13 print edition.

Germany: National AIDS Council releases powerful policy statement on HIV criminalisation

The German National AIDS Council – an independent advisory body of the Ministry of Health consisting of experts from the fields of research, medical care, public health services, ethics, law, social sciences, as well as people from the civil society – has produced a consensus statement on HIV criminalisation during consensual sex.

A press release issued yesterday by the Federal Ministry of Health states (unnofficial translation from German)

HIV infection has become a treatable chronic disease. In Germany, life expectancy with appropriate medical care is nearly normal. However, people with HIV still experience limitations, especially in everyday social life. They are often stigmatised and discriminated against in both the workplace and in the home environment. Criminal court judgments and their public perception play in a crucial role in this context.

  1. The National AIDS Council points out that the following medical factors should be assessed in criminal proceedings: HIV is difficult infection to transmit compared to other sexually transmitted diseases. The transmissibility of HIV is primarily related to viral load. In the first weeks after infection this is particularly high, and can amount to several million viral copies per milliliter of blood. After a few weeks or months, however, the immune system, usually controls the infection. Once viral load drops the body can keep viral load low for months or years before medication needs to be taken. During this time, the risk of infection is much lower than in the early phase of infection. Once the immune system weakens, generally antiretroviral therapy commences. With effective treatment, the viral load falls below the detection limit (viral load less than 50 viral copies / ml blood). If viral replication is permanently suppressed completely, according to current medical knowledge, HIV is not sexually transmitted. The risk reduction of successful antiretroviral therapy is at least comparable to the correct use of condoms. It is assumed that a large proportion of HIV transmission takes place during the early stages of HIV infection, i.e. at a time, when those who are infected are not aware of their infection, because an HIV antibody test can only show infection after a few weeks.
  2. Against this background, the National AIDS Council emphasisesA criminal examination of HIV exposure or transmission related to consensual sexual intercourse must be consistent with the medical facts. The decision whether or not the criminal liability of onward transmission can be assigned to the person with HIV cannot be made as a matter of routine. In fact, the determining factor are the circumstances of each individual case, especially the legitimate expectations of both sexual partners. In any case, in a short-term, consensual sexual encounter both partners are responsible for the application of protective measures, regardless of the knowledge or the acceptance of one’s own status and the status of the other person. Attributing either partner as perpetrator or victim is not appropriate.

    Criminal proceedings regarding the transmission of HIV from consensual sexual intercourse do not contribute to HIV prevention. They can even be counterproductive in terms of the willingness of an individual to take an HIV test and in terms of open communication of sexual partners. In contrast, it is in the interest of the individual and society to increase willingness to take an HIV test.”

The full text of the statement (in German) can be found here.

US: New toolkit for lawyers defending HIV-related prosecutions now available

A new toolkit from the Center for HIV Law and Policy / Positive Justice Project, released earlier this month, provides a wealth of information for lawyers representing people living with HIV who are facing criminal prosecution based on HIV status.

The toolkit includes charts, articles, guidances, case law, legal analysis, scientific data and empirical citations, as well as quick-reference resources and links to longer reference materials.

The toolkit includes the following resources :

  • HIV Criminalization Fact Sheet
  • Guidance for a Legal Advocate Representing an HIV-Positive Client in a Criminal Exposure Case
  • Guidance for People Living with HIV Who Are Threatened with, or Are Facing, Criminal Prosecution for HIV Nondisclosure or Exposure
  • Case Law Index
  • Legal Drafting Resources (featuring sample amicus briefs)
  • Secondary Resources
  • Sample Medical Expert Affidavit on HIV Transmission
  • Chart: Comparative Sentencing on HIV Criminalization in the United States
  • Chart: HIV, STIs and Relative Risks in the United States
  • Chart: HIV and Chronic Disease in the United States

Although created primarily as a resource for lawyers, other advocates, as well as people living with HIV in the United States, are likely to find the toolkit useful.

Download ‘Ending and Defending Against HIV Criminalization: A Manual For Advocates Volume 2: A Legal Toolkit: Resources for Attorneys Handling HIV-Related Prosecutions’ from the Center for HIV Law and Policy here.

 

More criminalization, further marginalization: Supreme Court's HIV non-disclosure decisions create viral underclass |

This is the second in a series of blog posts about the recent Supreme Court of Canada decisions about the criminalization of HIV non-disclosure. See the first post here, in which we wrote about the perverse, negative impacts of the decision for women living with HIV.

US: Scott A. Schoettes of Lambda Legal outlines the battle being waged in U.S. courts over HIV criminalisation in POZ Magazine

Scott A. Schoettes is the HIV project director for Lambda Legal, a longtime legal champion of HIV-positive people and LGBT civil rights. He filed a brief in The People of the State of New York v. David Plunkett, an HIV criminalization case heard by the New York Court of Appeals, the highest court in the state.

US: HIV Medicine Association calls for repeal of HIV-specific laws

The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) has issued a strong statement urging the repeal of HIV criminalisation statutes in the United States.

The HIVMA statement, which represents physicians, scientists and other health care professionals across the United States, demands the following:

  • An end to punitive laws that single out HIV infection and other STIs and that impose inappropriate penalties for alleged non-disclosure, exposure and transmission
  • All state and federal policies, laws and regulations to be based on scientifically accurate information regarding HIV transmission routes and risk;
  • A federal review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offences to identify harmful policies and federal action to mitigate the impact of these laws, including the repeal of these laws and policies or guidance for correcting harmful policies; and
  • Promotion of public education and understanding of the stigmatising impact and negative clinical and public health consequences of criminalisation statutes and prosecutions.

The HIVMA statement is another extremely important development in the Positive Justice Project’s campaign to repeal HIV-specific criminal laws in the United States.

In March 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD) – a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US – issued a similar statement.

The full HIVMA statement, which can be downloaded here, is published below.

HIVMA URGES REPEAL OF HIV-SPECIFIC CRIMINAL STATUTES

(Approved: October 16, 2012)

The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) represents physicians, scientists and other health care professionals who practice on the frontline of the HIV/AIDS pandemic. HIVMA strongly advocates public policies that are grounded in the science that has provided the tools and knowledge base to envision a world without AIDS.

Stigma and discrimination continue to be major impediments to the comprehensive response necessary to address the HIV public health crisis. Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV- infected are unjust and harmful to public health around the world.

In the U.S., HIV criminalization has resulted in unacceptable human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty-two states and two U.S. territories have HIV-specific criminal statutes. Thirty-two states have arrested or prosecuted individuals with HIV infection for consensual sex, biting and spitting. These laws and prosecutions unfairly target individuals with HIV infection and are not based on the latest scientific knowledge regarding HIV transmission, including the finding that transmission risk from biting or spitting is negligible.

Individuals with HIV infection can live healthy lives and approach near normal life expectancies with access to HIV care. Early diagnosis and effective management of HIV infection not only improves clinical outcomes for infected individuals but significantly reduces their risk of transmitting the virus to others. Laws that criminalize HIV infection discourage individuals from learning their HIV status and from receiving care. In doing so, they jeopardize the lives of HIV-infected individuals and place more individuals at risk of contracting an infectious disease that remains fatal if untreated.

HIV-specific criminalization fuels the stigma associated with HIV infection that slows efforts to combat the disease. Despite the availability of highly effective treatment for HIV infection, of the 1.1 million individuals living with HIV infection in the U.S., nearly 20 percent remain undiagnosed, only 37 percent are in care and just 25 percent have undetectable levels of the virus in their blood which makes it unlikely for them to be infectious to others.

All individuals must take responsibility for protecting themselves from HIV infection and other sexually transmitted infections (STIs). All persons engaging in unprotected or potentially risky sexual behavior are encouraged to discuss and disclose HIV and STI status except in situations where disclosure poses a risk of harm.

HIVMA Position: 

HIVMA urges a coordinated effort to address and repeal unjust and harmful HIV criminalization statutes. We support the following:

  • An end to punitive laws that single out HIV infection and other STIs and that impose inappropriate penalties for alleged nondisclosure, exposure and transmission;

    All state and federal policies, laws and regulations to be based on scientifically accurate information regarding HIV transmission routes and risk;

  • A federal review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses to identify harmful policies and federal action to mitigate the impact of these laws, including the repeal of these laws and policies or guidance for correcting harmful policies; and
  • Promotion of public education and understanding of the stigmatizing impact and negative clinical and public health consequences of criminalization statutes and prosecutions.

 

Lawyers critique Supreme Court ruling

Some criminal lawyers are worried that the Supreme Court has imposed on people prosecuted for not disclosing their HIV-positive status to sex partners a “significant evidentiary burden” to show that they used a condom and that their viral loads were low when they had sex. A pair of decisions handed down on Oct.