Malawi: High Court rules that mandatory HIV testing is unconstitutional

By Anneke Meerkotter, Southern Africa Litigation Centre (SALC) and Ian Southey-Swartz, Open Society Initiative for Southern Africa (OSISA)

In 2009, a group of women, presumed to be sex workers, was as part of a police sweeping exercise in Mwanza, Malawi. The women were taken to the Mwanza District Hospital where they were tested for HIV without their knowledge or consent, and in contravention of Malawi’s HIV policy. The women were then taken to the Mwanza Magistrates’ Court where some were charged with and convicted of “spreading venereal disease (HIV)”.

In 2011, eleven of these women filed an application in the Blantyre High Court challenging their subjection to mandatory HIV tests and the public disclosure of their HIV status in open court. The women argued that these actions by government officials violated their constitutional rights. Justice Dorothy nyaKaunda Kamanga handed down judgment on 20 May 2015.

Reading her judgment in court, Justice nyaKaunda Kamanga, said that forced HIV testing amounted to a violation of the applicants’ constitutional rights, including their right to privacy; their right to non-discrimination; their right to freedom from cruel, inhuman and degrading treatment; and their right to dignity. Justice Kamanga went a step further and requested a copy of the criminal court records in order to review the sentence the magistrate imposed on the applicants.

The case is illustrative of how the criminal justice system often impedes on accused persons’ rights to dignity, a fair trial and access to justice. In the present case, the matter was repeatedly delayed, including due to high caseloads and industrial action by judiciary personnel.

The judgment comes in the context of other important developments in Malawi. Civil society activists have increasingly voiced their concerns about the manner in which sex workers are treated by the police. Police often arbitrarily arrest women presumed to be sex workers during sweeping exercises and misguidedly and unlawfully charge them with offences such as being a rogue and vagabond or living off the earnings of prostitution, when there is no evidence of such offences having been committed. Such arrests inevitably involve a range of human rights violations.

The attitudes displayed by police towards alleged sex workers also extend to how some policy-makers view sex workers in Malawi. The HIV and AIDS (Prevention and Management) Bill of 2013, currently prohibits compulsory HIV testing, but allows forced HIV testing for specific groups of people, including commercial sex workers. In contrast, this case highlights the human rights violations caused by mandatory HIV testing and the importance of having legislation which prohibits this. This is an important message at a time when the Malawi government engages in final deliberations on the proposed Bill.

The case shows that it is possible for vulnerable groups to hold the government accountable when their rights have been violated. It is hoped that the judgment, once available, will be used as a resource by other marginalized groups to assert their rights and will contribute to improving constitutional jurisprudence in the region.

Canada: Mainstream magazine covers the problematic link between 'treatment as prevention' and overly broad HIV criminalisation

Transmission Control

HIV non-disclosure laws do more harm than good

By Miranda Elliott

From the June 2015 magazine

Testing HIV positive is no longer a death sentence—a fact that stands as one of the great medical achievements of the twentieth century. The United Nations aims to diagnose 90 percent of all HIV infections worldwide by 2020, deliver antiretroviral therapy to 90 percent of those who test positive, and suppress the virus in 90 percent of those treated. If these goals are met, the AIDS epidemic could be over by 2030.

The UN strategy owes a significant debt to Canadian research—particularly that of Julio Montaner, who was among the first scientists to establish highly active antiretroviral therapy as the standard of care for HIV, back in the mid-1990s. Sustained use of HAART suppresses the virus’s ability to replicate, eventually decreasing the concentration of HIV cells in the blood to undetectable levels and delaying the onset of symptoms and eventual progression to AIDS.

Regrettably, our legal system has not kept pace with these advances.

Montaner conducts his research in Vancouver, which was among the hardest-hit communities in North America in the early ’90s. The British Columbia government soon became an enthusiastic supporter of HAART and quickly rolled out antiretroviral-therapy coverage across the province. Between 1996 and 2009, the number of people taking HAART increased more than sixfold. Accordingly, the rate of AIDS-related deaths in the province plummeted 80 percent.

In their efforts to treat the virus, the researchers had stumbled upon a way to control its spread, too: when antiretroviral treatment reduces the virus in a patient’s bloodstream, it also reduces the virus to undetectable levels in sexual fluids and dramatically decreases the risk of transmission. Studies indicate that, among gay men, an undetectable viral load decreases the risk for unprotected receptive anal sex from 1.4 percent to almost zero. When it comes to the spread of HIV, a low viral load (between zero and 0.05 viral copies per millilitre) is more effective at preventing transmission than wearing a condom is.

Once the epicentre for new cases, BC has been enormously successful at controlling the HIV epidemic, using this Treatment as Prevention strategy, or TasP. The rate of new infections is now below the Canadian average. For the past decade, Montaner has been calling for national and international prevention strategies modelled on BC’s success with TasP. But what seems like sound medical advice could inadvertently put Canadian patients at legal risk. This is because we have one of the most aggressive legal approaches to HIV non-disclosure in the world. We are second only to the US in prosecutions.

HIV-positive Canadians who don’t reveal their status before they have intercourse can be charged with aggravated sexual assault. Conviction carries with it a maximum sentence of life in prison and a mandatory listing on the national registry of sex offenders. Between 1989 and early 2015, 176 people, in 188 separate cases, were prosecuted for non-disclosure, and more than half of the cases led to conviction.

Yet many of those convicted did not transmit the virus to the plaintiff. To be found guilty, a defendant need only have knowingly exposed his or her partner to what the courts deem a “realistic possibility” of transmission. Since there are no prosecutorial guidelines that define a low viral load, interpretations vary widely from case to case. And so it is possible that a properly medicated HIV-positive sexual partner might be convicted under the law, even if his viral load is so low as to reduce the possibility of transmission to a statistically negligible level.

The non-disclosure law originated with the 1998 Supreme Court decision in R v. Cuerrier, at a time when death rates were skyrocketing and policy-makers were scaling up testing and treatment. Proponents of the law argue that it helps protect people from malicious exposure to HIV.

The feeling on the ground is very different: since the law punishes only those who knowingly put partners at risk, it might encourage some at-risk Canadians to remain ignorant about their medical status. Evidence is sparse when it comes to this chilling effect, but even researchers such as Montaner agree that the law “creates a counterproductive environment.”

There is also a growing number of allegations that health authorities have not been forthcoming when it comes to informing patients of the legal risks associated with being HIV positive. Though BC’s 2014 testing guidelines lay out explicitly the requirement for informed consent, they don’t advise practitioners to address the issue of non-disclosure criminalization before testing. The province’s public-health officer, Perry Kendall, says this is intentional. Public-health practitioners are not legal experts, he says, noting that the longer and more complex the preliminary conversation, the less likely the patient will be to go through with testing.

While there is little systematic collection of information about testing experiences, Micheal Vonn of the BC Civil Liberties Association says she has received a number of complaints from patients, particularly pregnant women, who claim they were tested without consent. Vonn, alarmed by these allegations, plans to investigate further.

Another human-rights advocate, Richard Elliott of the Canadian HIV/AIDS Legal Network, believes clearer guidelines are essential to ensuring that those who are tested are sufficiently aware of the legal risks. He notes that physicians’ records have been subpoenaed in court to support convictions for non-disclosure.

The unfortunate irony here is that the very laws intended to prevent further transmission of HIV may actually promote its spread—by discouraging testing and, by extension, impeding the work of the successful TasP program. Seventeen years after the Supreme Court’s 1998 decision, Canadian lawmakers must ensure that our policy of criminalizing non-disclosure does not serve to punish those who opt for life-saving HIV therapy and treatment.

US: REPEAL HIV Discrimination Act reintroduced by Congresswoman Barbara Lee even as some US states propose new HIV-specific criminal laws

The past month or so has seen a huge amount of activity around overly broad HIV criminalisation in the United States, culminating the reintroduction of the REPEAL HIV Discrimination Act by Congresswoman Barbara Lee.

As well as on-going arrests and prosecutions of individuals for alleged non-disclosure (and some excellent reporting on certain cases, such as that of Michael ‘Tiger Mandingo’ Johnson in Missouri or of two new cases on the same day in Michigan) new problematic HIV-related criminal laws have been proposed in Alabama, Missouri, Rhode Island and Texas.

Fortunately, most of these bills have been stopped due to rapid responses from well networked grass roots advocates (many of whom are connected via the Sero Project’s listserv) as well as state and national HIV legal and policy organisations, including the Positive Justice Project.

REPEAL HIV Discrimination Act

On March 24th, Congresswoman Barbara Lee reintroduced a new iteration of the REPEAL HIV Discrimination Act (H.R.1586), “to modernize laws, and eliminate discrimination, with respect to people living with HIV/AIDS, and for other purposes”.

The full text of the bill can be found here.

The last time the REPEAL Act was introduced, in 2013, it had 45 co-sponsors before dying in committee. The first iteration, introduced in 2011, achieved 41 co-sponsors.

As of April 15th, the 2015 iteration has three co-sponsors, two Democrats – Jim McDermott and Adam B Schiff – and one Republican, Ileana Ros-Lehtinen.

As in 2011 and 2013, the bill has been referred to three House Committees: Judiciary, Energy and Commerce, and Armed Services.

Back in 2013, the Positive Justice Project produced an excellent toolkit that provides advocates with resources which “can be used in outreach efforts, including a guide for letter writing campaigns, calling your representative’s state and Washington D.C. offices, or meeting with your representative or the representative’s legislative staff.”

If you’re in the US, you can also show Congress that you support this bill at: https://www.popvox.com/bills/us/114/hr1586

Alabama

On April 1, 2015 the House Judiciary Committee of the Alabama Legislature held a hearing on HB 50, proposed by Democrat Representative Juandalynn Givan, that would increase the penalty for exposure or transmission of a sexually transmitted infection from a class C misdemeanour (punishable by up to 3 months in jail and a $500 fine) to a class C felony (punishable by up to 10 years in prison).

Representative Givan was apparently inspired to propose the bill after reading about a pastor in Montgomery, Alabama, who admitted in an October 2014 sermon that he was living with HIV and engaging in sex with women in his congregation without having disclosed his status. (He wasn’t prosecuted, but appears to have lost his job, as of the last news report in December 2014.)

In an interview in March 2015, she told AL.com that Alabama is one of only 16 states in the nation where it is a misdemeanour rather than a felony to ‘knowingly expose another person to a sexually transmitted disease’.

“What this bill is about is responsibility and accountability…The aim of this bill is not to punish those people with a sexually transmitted disease but to hold those people accountable,” that knowingly transmit dangerous illnesses to other people.

Some of the testimony before the House Judiciary Committee – most of it against the bill – is reported (rather poorly) in the Alabama Political Reporter.

Before the hearing began, the Positive Justice Project Steering Committee sent a powerful letter to the members of the House Judiciary Committee, voicing their strong opposition to the bill.

Medical experts and public health officials agree that criminalizing the conduct of people living with HIV does nothing to decrease the rates of infection, and may actually deter conduct and decisions that reduce disease transmission. Consequently, the American Medical Association, HIVMA, ANAC, and NASTAD have issued statements urging an end to the criminalization of HIV and other infectious diseases. Notably, the U.S. Department of Justice recently issued “Best Practices Guide to Reform HIV-Specific Criminal Laws,” which counsels states to end felony prosecutions of people living with HIV as contrary to the relevant science and national HIV prevention goals.

The bill remains with the House Judiciary Committee, but seems unlikely to be passed given that there are no co-sponsors.

Missouri

On March 10th, Republican Representative Travis Fitzwater introduced HB 1181, which proposed adding ‘spitting whilst HIV-positive’ to Missouri’s (already overly draconian) current HIV-specific criminal statute.

It is unclear what caused Rep Fitzwater to introduce the bill. However, advocacy against it was swift, with the local chapters of both ACLU and Human Rights Campaign, and Missouri-based HIV advocate, Aaron Laxton, planning to testify against it within days of it being introduced.

Although the bill was scheduled for a public hearing before the Civil and Criminal Proceedings Committee on April 7th, the community’s quick response meant the bill was not heard. According to Laxton, “within a matter of hours every member of the Civil and Criminal Proceedings Committee has received calls, emails, tweets and messages from many people” against the bill.

The proposed bill now appears to be dead, and advocacy in Missouri is now focused on modernising the existing HIV-specific law (which includes criminalising biting whilst HIV-positive) to take into account the latest science around HIV risk and harm.

Rhode Island

On February 24th, Republican Representative Robert Nardolillo introduced a new HIV-specific criminal law (H 5245) that would have criminalised HIV non-disclosure in the state for the first time.

In an interview with Zack Ford on thinkprogress.org, Rep Nardolillo said that as a survivor of sexual abuse he was surprised to discover that Rhode Island law does not allow for harsh enough penalties if HIV is passed on during a sexual assault.

However, although his proposed bill created a felony when someone with HIV “forcibly engages in sexual intercourse,” it also criminalised when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”

The entire hearing before the Rhode Island House Judiciary Committee was captured on video, and an excellent blog post by Steve Ahlquist on RIFuture.org highlighted both Rep Nardolillo’s ignorance of the potential harms of the bill, and the sustained and powerful testimonies against the bill from public health experts, people living with HIV and HIV NGOs alike.

Ahlquist concludes, “In the face of such strong opposition, it seems extremely unlikely that this legislation will advance out of committee.”

All testimonies are available to view in short video clips on the blog. You can also read the written testimony of the AIDS Law Project of the Gay & Lesbian Advocates & Defenders (GLAD) here.

Texas

On February 25, Republican Senator Joan Huffman introduced SB 779, which would essentially have created an HIV-specific criminal law by the back door.

Texas repealed its previous HIV-specific criminal law in 1994 and uses general criminal statutes, including attempted murder and aggravated assault, for potential or perceived HIV exposure and alleged HIV transmission cases.

According to the Advocacy Without Borders blog, “SB 779 proposes to amend the state Health and Safety Code to allow for HIV test results (which are currently confidential) to be subpoenaed during grand jury proceedings – and for a defendant’s medical records to be accessed without their consent to establish guilt/innocence and also potentially to be used to determine sentencing. Essentially, this bill proposes to criminalize having HIV.”

The proposed law, and a number of other proposed HIV-related laws, was also critiqued in a Dallas Voice article highlighting the opinion of Januari Leo, who works with Legacy Community Health Service.

Leo, a longtime social worker who has worked with clients living with HIV, is blunt about the three bills: “They would criminalize HIV. HIV isn’t a crime. It’s a public health problem…These new bills use HIV status as a crime, against people who are suspects in a crime but have yet to be proven guilty. They’re allowing prosecutors to use private medical records, as mandated under HIPPA, as a weapon.”

Although it was considered in a public hearing before the State Affairs Committee on April 16, it now appears to be dead.

US: Missouri proposal to add spitting whilst HIV-positive to criminal law likely defeated following strong pushback

On Tuesday, the Missouri House Committee on Civil and Criminal Proceedings held a hearing on HB 1181, a bill that would criminalize individuals knowingly infected with HIV who spit at another person. Contact with saliva has never been shown to result in HIV transmission.

HRC Senior Legislative Counsel Alison Gill testified in opposition to this harmful bill.

“According to the Presidential Commission on the HIV Epidemic, criminal sanctions for HIV transmission must be carefully drawn, directed only towards behavior which is scientifically established as a mode of transmission, and should be employed only when all other public health and civil actions fail to produce responsible behavior,” she testified. “H.B. 1181 fails to meet this standard because it criminalizes behavior with a low or negligible risk of HIV transmission, which may result in stigmatization and negative health outcomes among people with HIV and the LGBT community in Missouri.”

HRC urges the Missouri lawmakers to oppose this unnecessary and harmful bill.

Germany: Aachen Court re-evaluates key ‘mens rea’ requirement in German law, rules HIV transmission without disclosure is negligent injury, not intentional harm

Last week, for the first time a German court ruled that HIV transmission without prior disclosure was negligent injury, rather than intentional harm.

The District Court of Aachen sentenced a 43 year-old man to one year and nine months on probation for having condomless sex with his former female partner without disclosing his HIV-positive status. The woman is now also HIV-positive. The maximum sentence for negligent bodily injury is three years in prison and a fine.

With this judgment the Court has created legal history – the first ruling since 1988 to change the way HIV non-disclosure cases are considered by German courts. Until now, the Federal Court, as well as lower courts, had always considered that HIV non-disclosure prior to sex without a condom meant that the defendant “considered acceptable” that their partner would acquire HIV. This concept, of dolus eventualis, is much closer to the common law definition of ‘recklessness’ than to malicious intent.

Leading HIV and human rights lawyer Jacob Hösl, who attended the hearing in an advisory capacity, told Deutsche AIDS-Hilfe: “The Federal Court has always said that the examination of pre-meditation requires a case-specific overall examination, which can vary greatly depending on the individual circumstances. The lower courts, however, have always assumed intent by default. For the first time this court sees it differently. ”

Hösl praised the fact that the court studied intensively the medical facts and personal circumstances of the accused. “The man did not want his partner infected – for him she was the love of his life,” he noted.

The presiding judge, Hans-Günter Goergen, began his oral verdict, stating: “We have learned a lot about HIV in this trial.” According to press reports, he noted that the defendant had concealed his HIV-positive status because he was afraid his partner would leave him, but that he had no desire for her to become HIV-positive.

The judge also accepted that the defendant had tried to protect his partner (by using condoms most of the time, and withdrawing before ejaculating), but failed due to the circumstances (she started taking contraceptive pills and desired condomless sex) and because of his fear of losing his partner. He noted that the defendant’s former wife had divorced him in 2007 after he had tested HIV-positive. Accordingly, the judge saw no evidence that the defendant acted with intent.

The Court also found the defendant not guilty with respect to three other charges relating to HIV non-disclosure and potential HIV exposure involving two women when the defendant’s viral load was undetectable.

A medical expert told the Court that during the relationship with the complainant that is now HIV-positive, the risk of transmission was low, as he had a low (but not undetectable) viral load. Dr. Heribert Knechten, a witness for the defence, who was also the defendant’s doctor, noted that in 2014, before commencing treatment, his patient’s viral load was stable at 85,000 copies per milliliter, which translated into the risk of HIV transmission during vaginal intercourse to be between 0.05 to 0.15 percent. He also testified that after the defendant’s viral load reached undetectable at the end of 2014 that he was very unlikely to be infectious.

Manuel Izdebski, Deutsche AIDS-Hilfe board member said in a press release:

“This verdict is a step of great value: the first time that a court recognizes that you cannot automatically assume intent in HIV transmission cases; it is almost always due to fear – as it was in this case – that people do not disclose. Accordingly, this must be taken into account. Criminal law is not an appropriate way to measure this. The decision of the District Court in Aachen is a pioneering step towards a legal system that no longer penalises HIV transmission as a criminal offence.”

The written judgement is expected soon. However, today, the prosecution has appealed the ruling, so this judgement may not be final.

Canada: Provocative new resource from anonymous collective of people living with HIV explains how to protect yourself from prosecution

This is not intended as legal advice. Please always consult a lawyer if you are concerned about issues related to HIV non-disclosure or exposure. And do your own research!

Some of the tactics suggested in this document are within a grey area of the law. Make sure you are aware of this, and make onlydecisions that you are comfortable with to protect yourself. We do notpromote non-disclosure of one’s HIV status, nor do we support the stigma that can make it so difficult to do so.

An anonymous collective of people living with HIV and our allies produced this document. We have no leaders, no spokespeople, and no meetings. Copy this, share it, add to it, and adapt it to your own setting. Join us by doing it. Time is running out.

*The photos in this document are from the July 1990 Montreal Sex Garage riots

Download booklet version here!

HOW TO HAVE SEX IN A POLICE STATE: OUR APPROACH

In 1983, Americans Richard Berkowitz and Michael Callen published the book How to Have Sex in an Epidemic: One Approach, which is credited as being the first piece of safer sex literature for gay men. In the early days of the AIDS epidemic and in the absence of state action people with HIV and their friends banded together and took things into their own hands. Through advocating the use of condoms and by sharing available HIV prevention information, safer sex in the late 80s and 90s was conceived as a way to take collective accountability for addressing the epidemic, care for one another, and resist fear-based and abstinence-only responses.

Thirty-years after the publication of How to Have Sex in an Epidemic we face a new type of emergency here in Canada. State neglect in the response supporting people with HIV is now coupled with intensified forms of state control, surveillance and criminalization. Canada is among the most punitive countries in the world for HIV-positive people, where the state is turning towards criminalization instead of public education and support.

WHAT YOU NEED TO KNOW: The “Law” in Canada

The landmark 2012 Mabior and D.C. Supreme Court decisions outline that people are required to tell a partner they have HIV before they engage in sex that poses a ‘realistic possibility’ of transmission. This legal test requires disclosure for vaginal intercourse unless a condom is used and the person with HIV has a “low” viral load. This decision did not address same sex relations, anal sex, or oral sex. Anyone who doesn’t disclose their HIV positive status when having sex with a condom OR low viral load can be arrested and prosecuted. Since this decision at the Supreme Court prosecutions are on the rise. The risk of being labeled a criminal is now biologically marked – we are infected with criminal potential. Acquiring a low viral load requires access to anti-HIV drugs, which are still out of reach for many of us. Condom use is also complex when power and gender-based violence are factors. Charges can range from assault to attempted murder and do not require HIV transmission to occur. A majority of people in these cases are charged with aggravated sexual assault, one of the most serious offences in the Criminal Code reserved for violent sexual assaults. Those prosecuted can face long sentences, are registered as sex offenders and held in segregation units. One accusation from an angry or upset former lover can result in lengthy court battles, incarceration and sensationalized media exposure. Even if the person decides to drop the charges, the state can pursue criminal prosecution in the “public interest”.

Within this context of intensified criminalization we see the reversals of hard-fought protections for our privacy and rights. Under the AIDS Industry’s “treatment as prevention” project, people living with HIV are now understood as carriers of disease who must be neutralized through medical treatment. This treatment imperative plays out regardless of if we have access to the expensive medications, if we can tolerate their many side effects, or even if there is a medical necessity to go on them. The fundamental principles underlying HIV testing (i.e. consent, confidentiality, and counseling) are rapidly disappearing. Voluntary and anonymous HIV testing are being replaced by involuntary and coercive forms of testing, now called “routinized testing”, where people can be systematically tested in health-care settings – many of them without their knowledge. The names and HIV-status of people who test positive can end up on government databases for life. Also, through increased public health oversight, community–based organizations have now become an arm of state surveillance, discipline and control. Many of them now fully endorse and implement new coercive testing approaches in the community.

What follows is a list of suggestions gathered by people living with HIV to help one another steer clear of the law and the state, to protect our communities and ourselves.

TAKE THE TEST & RISK ARREST

People who test HIV-positive will in most cases have this information collected by public health officials. In the early days of the epidemic activists and other people with HIV fought to have their information about their HIV-status be anonymous and out of the hands of state officials. Today things are different.

Today, in order to prevent intervention from the criminal justice system and public health officials it could technically be in your best interest not to know your HIV status. While this is still a grey area within the law, if you do not “officially” know you have HIV, then you could have less of a chance of being charged or prosecuted in relation to non-disclosure. Although, if you have engaged in activities that are commonly understood to put you at risk of HIV infection then you could have a legal obligation to disclose these activities to other partners. In 2003, a case went to the Supreme Court called R. v. Williams, and while the case did not fundamentally alter how the law is applied it did outline that if someone has an awareness of risk, then they have a duty to disclose, even if they are not aware of their HIV status. So we know that willful ignorance about your status is not going to keep you completely out of the courtroom if someone presses charges against you or the police and public health come knocking at your door. But being careful about where you get tested and who knows your HIV test results could prove helpful in some cases. You can order home HIV testing kits online, or buy them while travelling to other countries where they are available.

Avoid all HIV or STI tests at clinics where your real name is recorded. If you do not already know your HIV status, only go for anonymous tests (ensure the clinic you go to does not record your name, or any contact information), or get an at home test from across the border or online. The police and others can use medical records to confirm that someone has HIV, has been counseled about their status, is aware of their viral load etc. and that they are thus criminally liable regarding cases of non-disclosure. To prevent this from happening, try your best to keep your HIV status out of official state, public health, and AIDS service organization record keeping practices.

If you test HIV-positive through anonymous testing and you want to go to a doctor – ask your doctor if they do a confirmatory HIV test. Some doctors are mandated by public health to do a confirmatory HIV test, which will have your name attached to it. However, there are some HIV specialists that do not follow this mandate. Ask your friends and look for a doctor who will not submit your HIV status to public health. Sometimes a doctor needs to make sure you have HIV before they are willing to provide care. You can ask that they do a viral load test, as public health authorities do not as of yet collect this data. Having a record of your viral load can act as an equivalent to a positive HIV-positive test for you, and also for your doctor to provide appropriate care, while keeping you out of the public health database. But this strategy will not help if the medical records your doctor keeps are subpoenaed in the case of arrest.

If you are arrested on a charge in relation an HIV, do not tell the police your HIV status, or anything else without a lawyer. Do not volunteer any information to the police. It is important to try and get a lawyer who is knowledgeable on HIV exposure and non-disclosure cases, so that you can get an adequate defense. Legal HIV organizations have connections to knowledgeable lawyers who understand these sorts of cases.

FUCK SAFELY: HOW TO PROTECT YOURSELF

While we need to protect ourselves from public health and the state, we also need to protect ourselves from potential partners who may call the cops on us out of fear, lack of information or AIDS-phobia.

If disclosing is not possible, maintaining a low viral load and using condoms are the only way to comply with the law. But we know that both acquiring a low viral load and always using condoms is not possible for everyone. Also, there have been cases where people have been charged despite disclosing their HIV status to a sex partner, or have used condoms and had a low viral load. So if you are in position to do so, ask your partners to sign a statement agreeing that they know your HIV-positive status and have agreed to have sex with you. Alternatively, you can keep a record of having disclosed on your phone or computer. Take a screen capture of your disclosure on hook up sites. Remember to record the date and time. Recording your disclosure on a social media app is also a potential strategy. If possible, consider the idea of disclosing your status to person in front of a trusted witness, friend, or at a trusted counselor at a community organization.

We know that disclosure can result in violence or other consequences. In this case there are still things that you can do to protect yourself and your partners. If condom use is possible, some people will make sure to keep used condoms from past partners labeled and frozen in the freezer as evidence that the sex they had was protected. These are ridiculous measures, but these are ridiculous times.

If you have questions about safe sex, talk to people you know and learn about different ways to fuck safely. If you talk to a health care provider, ask general questions and don’t detail challenges that you may be having with disclosure and condom use. If you have questions about your legal duties, for example if the condom breaks, don’t ask a health care provider. Ask a person who is familiar with the law (there are organizations what work on HIV and the law in Canada, look them up online). Make sure the person you talk to does not document your concerns in your health records or some other form of record (like records they keep on clients at AIDS Service Organizations).

KEEP YOURSELF OFF THE PUBLIC HEALTH RECORD

The less information the state has on you the harder it will be for them to develop a criminal or public health case against you. This doesn’t mean that you shouldn’t notify people of your own status, but can be a strategy of keeping the state out of your sex life.

Sometimes public health officials do ‘contact tracing’ or ‘partner notification’ where they document who has come into contact with whom (or in this case, who has had sex with whom) to notify other partners of the potential “risk”. If you come into contact with public health officials who are doing ‘contact tracing’ tell them that you do not know the names of anyone you have had sex with. This collection of information by public health could later lead to potential criminal charges, a public health order, or other consequences. One strategy is to tell public health officials that you only have anonymous sex and that you do not know the names of any people you have sex with, or that you don’t have the means of contacting them.

If your HIV status is already recorded by public health, and you test positive for another sexually transmitted infection (STI), you could be asked to meet with a public health nurse. The nurse may ask you to give them the names of whom you have had sexual contact with. Never give names or contact information of other people to public health. Public health could contact them and notify them of your HIV status and that person could press charges if you have not disclosed to them.

Some public health officials can be very aggressive and stigmatizing towards people living with HIV and they may harass you once they have any of your contact information. If this happens, you can make an official complaint against them by contacting the health unit where they work.

Each province has its own public health department and health units. Some public health units are more concerned with regulating people living with HIV than others. Some provinces have public health laws that allow for the issuance of public health orders. Under public health law people can be mandated with legal orders to disclose their HIV-positive status to all sex partners in specific terms, practice sex in specific ways, or even be put under house arrest, as well as being court-ordered to take pharmaceuticals. To better protect yourself, know what public health jurisdiction you are in, and if they issue public health orders to people living with HIV.

If you receive a public health order, or get arrested call a lawyer right away! You often only have 15 days to respond to a public health order, and you will need a lawyer as soon as possible to support you in this process.

ACCESS SUPPORT NOT SURVEILLANCE

When going to a community organization, AIDS Service Organization or healthcare provider always ask any counselor, nurse, doctor, social worker, peer worker, or other support worker how, why, and under what circumstances they are professionally required to document their interactions with you, and if this data can be used to identify you. In many organizations, there is an increasing push to collect more and more information on people who access services, but this information can also be used against you. Anything they write down or collect about you can be subpoenaed and used as evidence in a court of law. Make sure that you trust your healthcare providers and they are transparent about how and why they keep records on you. Do not give out any information about your sex life, sex partners, HIV status or sex practices unless you are absolutely certain that they will respect your confidentiality and not document what you tell them. You can always request a copy of your file or any notes kept on you. Alternately, if you are disclosing to your sexual partners, you can ask your care provider to note this in your file to further protect yourself against accusations.

MAKE THIS AN ISSUE IN YOUR COMMUNITY

We are in a dangerous moment under the watch of a hostile regime and we urgently need to take back control of our lives, our health and our freedom. When possible, talk about HIV and talk about the potential impacts of HIV criminalization with friends, sex partners, colleagues, family and with communities that you are part of. Make it known that you are a person that other people can talk to about these issues. Work in your communities to build consensus at a grass-roots level to end the criminalization of HIV.

Police can pressure people in these cases into pressing charges. Refuse to be a witness and help prosecutions. Respect people’s decisions about disclosing. This complex social issue cannot be understood within – or reduced to – a legal and policing framework of “victim” and “perpetrator”. Work to undermine these practices that support criminalization. Encourage dialogue over calling the cops.

Be proactive and hold community organizations accountable. Call for AIDS Service Organizations, health-care providers, or other community groups to not participate in reporting or record keeping practices that could support HIV criminalization investigations. Ask these organizations to be transparent about what they do and what their policies are around reporting and collection of information. If they do not have policies or practices around this, push them to develop them. Ask community organizations, if their records are subpoenaed, to tell the cops to seal the evidence and instruct them that it can only be opened before a judge. This can buy you time to oppose the use of these records as evidence.

This issue is not over. There are opportunities for change if people start taking action now! As people living with HIV, we know this: We are responsible and we already practice care for the health of our sex partners. Now we must take action to protect ourselves from the violence of the state, the violence of the AIDS Industry, the violence of AIDS-phobia, and the violence of the criminal injustice system. As the carceral system becomes the watermark of our everyday life it is becoming clear that we are not the “public” that public health is interested in protecting. But we can protect ourselves if we work together, support each other, share strategies and push for change.

Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health

Conference Dates and Location:

February 23-26, 2015 | Seattle, Washington

Abstract Number:

129

Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health

Primary Author:

Jeffrey Crowley¹

¹ O’Neill Institute for National and Global Health Law, Georgetown University, Washington, District of Columbia, United States

Abstract Body:

Laws and policies have been used to protect people living with HIV and affected communities from stigma and discrimination. Indeed, the Americans with Disabilities Act (ADA) and the UN Convention on the Rights of Persons with Disabilities are just two legal instruments that help to create environments where people feel safe enough to come forward for HIV testing and to engage in care. Laws and policies also are used in ways that are highly stigmatizing and that hinder public health approaches to responding to HIV. In the United States, thirty-four states and territories have laws that criminalize the conduct of people living with HIV based on perceived exposure to HIV and without any evidence of intent to do harm. Far from representing a legacy of the past, people with HIV continue to be prosecuted and jailed for failure to disclose their HIV status prior to engaging in sex and for spitting and biting offenses, often in the context of arrest by law enforcement. Moreover, this is a challenge in countries across the globe. As of 2013, twenty-six African countries had overly broad and/ or vague HIV-specific criminal laws, most enacted over the past decade, with a further three countries considering new HIV-specific criminal laws. As governments, clinicians, researchers, and advocates seek to maximize population-level HIV viral suppression both to protect the health of people with HIV and also to reduce HIV transmission, these laws and policies could hinder our collective efforts. This talk will examine the current landscape of HIV criminal laws and policies in the US and selected African countries, will examine available data on the effectiveness of such laws at deterring behaviors such as failure to disclose HIV status prior to sexual encounters, and will look for common lessons from both Africa and the US to suggest a path forward for promoting effective evidence-based approaches to reducing HIV transmission.

Session Number:

S-5

Session Title:

Advancing HIV Prevention: Lessons from Biology, Medicine, and Public Health Law

Presenting Author:

Crowley, Jeffrey

Presenter Institution:

Georgetown University

US: Court of Appeals for the Armed Forces acknowledges per-act sexual HIV exposure risk, limiting future military prosecutions for HIV non-disclosure as aggravated assault

The US Court of Appeals for the Armed Forces (CAAF) has reversed the 2011 aggravated assault conviction (upheld by the US Air Force Court of Criminal Appeals in 2013) of Airman David Gutierrez for potentially exposing a number of sex partners to HIV at ‘swinger parties’, severly limiting the use of this law for future prosecutions in the US armed forces.

Gutierrez’s court-martial on the aggravated assault charge required prosecutors to prove several elements, including that the sexual activity – the “assault” – was deemed likely to produce death or grievous bodily harm.

The five judge CAAF panel’s unanimous ruling, published on Monday (and available in full below) examined the per-act risk of oral and vaginal sex with and without a condom (although there appears to be no discussion of viral load as a key modifier of these risks).

“The question in this case is not whether HIV, if contracted, is likely to inflict grievous bodily harm,” wrote Chief Judge James E. Baker. “The critical question . . . is whether exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous bodily harm.”

In overturning the conviction, the court cited testimony from the prosecution’s medical expert, Dr. Donna Sweet, that in oral sex with or without a condom, the risk of HIV transmission is “almost zero” and HIV transmission through vaginal sex with a condom is only “remotely possible.”

She estimated that an HIV-positive man engaging in condomless vaginal sex with an HIV-negative woman would result in a 1-in-500 risk of the woman acquiring HIV, but deemed this to be at the “high end” of probabilities.

CAAF concluded that the prosecution had failed to prove that any of the acts were likely to transmit HIV.

“In law, as in plain English, an event is not likely to occur when there is a 1-in-500 chance of occurrence,” Baker wrote.

Although the decision – overturning a 25-year precedent that had allowed military personnel to be convicted of aggravated assault based solely on a positive HIV antibody test – was welcomed by advocates, another part of the ruling potentially opens the door to the use of a lesser charge – assault consummated by a battery – for future allegations of HIV non-disclosure.

An article in The Tribune quotes Catherine Hanssens, executive director of the Center for HIV Law and Policy, noting that at least part of the decision was “an important sign of progress” that should be “read and taken seriously” by civilian as well as military courts. But…

In a move called “curious” by Hanssens and “astonishing” by military law blogger Zachary D. Spilman, author of Blog-CAAFlog, the court cited only a Canadian court decision for support of the potentially far-reaching conclusion that lack of knowledge equals lack of true consent.

In fact, the Court cited the notorious Supreme Court of Canada’s 1998 Cuerrier decision (which led to HIV non-disclosure in Canada problematically being framed as a serious sexual assault).

This, notes Spilman, could be extremely problematic in future military cases. His opinion analysis concludes:

I think this an incredibly odd ending to a very interesting opinion. CAAF reaches to foreign law to invalidate the consent of Appellant’s sexual partners, while simultaneously rejecting the notion that it should distort the law to “fit a round peg of conduct into a square hole of a punitive statutory provision.” Ultimately, the court seems to have merely traded one distortion of the law for another.

It remains to be seen what impact this will have on future US civilian or military cases.

In December 2013, the US Senate passed the National Defense Authorization Act (fiscal year 2014) which aimed to reform the military’s HIV-related policies, including prosecutions for HIV non-disclosure, exposure and transmission. Although work is taking place behind the scenes, it’s unclear when this will have an impact on pending or future prosecutions or policy.

In the meantime, Gutierrez is currently serving eight years in military prison. His case has been sent back to the Judge Advocate General of the Air Force for sentencing review.

The next HIV-related case likely to come before CAAF will be that of Lt Col. Ken Pinkela whose recent change.org campaign to review his unjust court-martial has over 73,000 signatures.

Since he was (falsely) accused of condomless anal intercourse when his viral load was extremely low – neither of which were discussed in this ruling – it remains unclear how this ruling will affect his case.

Read the entire CAAF decision below.

US v Gutierrez opinion and judgment (Feb 2015)

UK: Law Commission scoping consultation deadline this week; key findings and outputs from ‘Criminalizing Contagion’ seminar series may help inform the process

This week, the Law Commission – which reviews areas of the law in England and Wales that have become unduly complicated, outdated or unfair – will conclude its scoping consultation of the reform the Offences Against The Person Act, the law that is currently used to prosecute people living with HIV (and occasionally other sexually transmitted infections; one each so far for gonorrhoea, hepatitis B and genital herpes) for ‘reckless’ or ‘intentional’ transmission, as grievous bodily harm.

The deadline for responses is this Wednesday 11 February 2015.

The consultation is a scoping review – it is looking at the scope of whether a further full review of the existing law should take place, rather than examining what the law should be.

The consultation asks six key questions (out of 38) specifically relating to HIV (and STI) criminalisation:

We consider that future reform of offences against the person should take account of the ramifications of disease transmission. Do consultees agree?
We also consider that in such reform consideration should be given to: (1) whether disease should in principle fall within the definition of injury in any reforming statute that may be based on the draft Bill; (2) whether, if the transmission of sexual infections through consensual intercourse is to be excluded, this should be done by means of a specific exemption limited to that situation. This could be considered in a wider review; alternatively (3) whether the transmission of disease should remain within the offences as in existing law. Do consultees agree?
If the transmission of disease is to be included in any future reform including offences causing injury, it will be necessary to choose between the following possible rules about the disclosure of the risk of infection, namely: (1) that D should be bound to disclose facts indicating a risk of infection only if the risk is significant; or (2) that D should be bound to disclose facts indicating a risk of infection in all circumstances; or that whether D was justified in exposing V to that risk without disclosing it should be a question for the jury in each particular case. Do consultees have any preference as to these possible rules?
We consider the reform of offences against the person should consider the extent to which transmission of minor infections would be excluded from the scope of injury offences. Do consultees agree?
Do consultees consider that future reform should pursue the possibility of including specialized offences of transmission of infection, endangerment or non-disclosure?
Do consultees have observations on the use of ASBOs, SOPOs or other means of penalizing non-disclosure?

Responses to the scoping consultation, including those from the HIV Justice Network, will be published soon. Following the consultation, the Law Commission will decide on their recommendations for the scope of reform in this area and present them to Government in the form of a scoping report.

In the meantime, the summary of key findings and outputs from the Economic and Social Research Council’s seminar series ‘Criminalizing Contagion: legal and ethical challenges of disease transmission and the criminal law’, which took place at the Universities of Southampton and Manchester from January 2012 until September 2014, provides a comprehensive legal and academic overview regarding how the law should treat a person who transmits, or exposes others to the risk of, a serious infection such as HIV.

Written jointly by David Gurnham, Catherine Stanton and Hannah Quirk, the report provides a detailed overview of the discussions in the seminars as well as the numerous publications arising from them, and acknowledges contributions made by various groups and individuals.

Australia: Western Australia implements unscientific new law mandating HIV and hepatitis testing for spitting at, or biting, cops

Spitters and biters beware. From January 1 anyone caught biting or spitting at a police officer in Western Australia will be ordered to undergo blood tests for infectious diseases.

The new law, coming in at midnight on the busiest night of the year, has been introduced to streamline the testing process for officers who are injured by a potentially infected offender.

WA Police Minister Liza Harvey said officers’ concerns would be eased by immediately testing the blood of an attacker for infectious diseases.

“Previously a police officer has had an agonising three to six-month wait before they get results from their own blood testing to confirm if they have contracted a disease,” she said.

“So for those people who do decide to get on the wrong side of police and decide to bite them or spit at them we will be compelling those offenders to provide a blood sample.

“They [police] will have an idea of whether they’ll have contracted HIV or hep C or hep B and we can give the police officers peace of mind early in the piece as to whether they’ve been exposed to those diseases. ”

Ms Harvey said 147 police in 2013 were exposed to bodily fluids in a way that they could contract an infectious disease.

“This legislation will allow for the taking of blood samples from the offender which helps in diagnosis, clinical management and treatment of the exposed police officer,” she said.

She said the testing would only take place if transfer of an infectious disease, such as bodily fluid through broken skin, was possible.

“We are deeply committed to protecting our officers on the frontline, who are committed to protecting us,” Mrs Harvey said.

Under the new law, approval for the blood test must come from an inspector or higher rank and a court order is needed if the offender is a child or is impaired.

Test will check for HIV, hepatitis B and C.