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

be guided by the best available scientific and medical evidence relating to HIV,
uphold the principles of legal and judicial fairness (including key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof), and
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.

US: Updated advocacy tools – sample expert statement on transmission risk and US criminalisation map

The Center for HIV Law and Policy (CHLP) has updated two resources that could be helpful to HIV anti-discrimination advocates and attorneys representing PLWH. Together with the HIV Medicine Association (HIV MA), CHLP updated the Sample Expert Statement on HIV Transmission Risk describing in more detail the ways in which HIV is and isn’t transmitted.

Canada: Male Call study finds more than half of gay men with HIV fear being prosecuted for not disclosing their HIV status

Two-thirds of men who have sex with men believe that people with HIV-AIDS should face criminal charges if they fail to disclose their status to a sexual partner. But that number varied a lot depending on circumstance, with 83 per cent saying non-disclosure before anal sex should be a crime, and 42 per cent saying failure to disclose HIV status before oral sex was a criminal act. Only 17 per cent said failing to disclose should never be criminalized. “The consensus is there should be legal measures in place related to disclosure,” Dan Allman, an assistant professor in the Dalla Lana School of Public Health at the University of Toronto, said in an interview. “At the same time, there is a feeling that legal measures won’t have an impact. There’s an innate understanding that disclosing your HIV status is hard and criminal laws aren’t going to make it easier,” he said.

The survey, dubbed Male Call involved 1,235 detailed interviews with men who have sex with men. The research shows that 26.2 per cent of respondents did not know their HIV status because they had not been tested recently; that number jumped to 50.6 per cent among bisexual men. Overall, 67.2 per cent of the men surveyed were HIV-negative, and 6.6 per cent HIV-positive.

Most of those who had not been tested said they were confident they were HIV-negative because their sexual practices put them at low risk. But a significant minority, 17 per cent, said they did not want to know their status, either because they could not deal with being infected or out of fear it could cause legal problems.

The fear associated with being HIV-positive was pervasive. The poll showed that 83 per cent of men worry about being stigmatized because of HIV, while 68 per cent fear being rejected by other gay/bisexual men, and 51 per cent fear being prosecuted for not disclosing their HIV status. 17.8% agreed that in the current legal climate it was better not to know your HIV status.

Full report available here: http://www.malecall.ca/technical-report/

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 19^th 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.

Law Enforcement and HIV Policy Groups Release Fact Sheet for Police on HIV Risks “Spit Does Not Transmit” Intended to Reduce Officer Anxiety and Needless “Exposure” Prosecutions (Press Release)

The Center for HIV Law and Policy (CHLP), the National Organization of Black Law Enforcement Executives (NOBLE) and the American Association of Prosecuting Attorneys (AAPA) today released a new fact sheet that they hope will bring law enforcement officers up to speed on the real risks of HIV that they face from possible exposure to the bodily fluids of those they police.

According to these organizations, every year people with HIV are the subject of felony criminal charges ranging from aggravated assault to intentional HIV transmission following police encounters in which defendants are accused of spitting at or biting police, usually in the course of a stop or arrest for a minor incident, such as disorderly conduct. Although the risk of transmission ranges from zero to far less than 1%, and there are no known cases of HIV transmission to a police or corrections officer from such events, spit and bite incidents have resulted in new or enhanced criminal charges and sentences of more than thirty years in prison. The fact sheet, Spit Does Not Transmit, provides current information, complete with citations to published experts, about transmission risks from non-sexual contact with a person’s bodily fluids.

“Accurate information is critical to law enforcement and corrections officers – In our line of work, our lives and the lives of others depend on it. Studies show just how much misinformation about HIV is transmitted among people in every part of the country, and every profession,” said Joseph Akers, Jr. NOBLE Interim Executive Director. “The nature of law enforcement is such that we encounter people from all walks of life with all sorts of problems. We are regularly exposed to risks; that’s the nature of the job. It is important for officer safety that we understand the facts about HIV transmission, and it is also important that an arrest not turn into a more serious set of charges simply because the arrestee has HIV.”

Statistics show that of all the cases brought against people with HIV for so-called exposure offenses, twenty-five percent (25%) arise from incidents in which spitting or biting has been alleged, and almost all of these have been brought by law enforcement or corrections employees. Law reform efforts that would eliminate the ability to prosecute people on the basis of their HIV or other disease status when they act without the intent or real ability to transmit – as is generally always the case with spitting and biting – are under discussion in multiple states, said Rashida Richardson, a staff attorney with CHLP.

“It is a waste of time and money to devote public safety resources to conduct that, while distasteful, poses no risk of harm,” observed David LaBahn, Executive Director of the American Association of Prosecuting Attorneys. “Too many prosecutions are based on outdated notions of what HIV is and how it is transmitted. Information is the antidote, and this is a good place to start.”

[Although focused on the US, this factsheet will be useful anywhere police are inadequately trained on HIV-related risks during occupational exposure, including discarded needles.]

The fact sheet is available below and on The Center for HIV Law and Policy’s website.

Spit Does Not Transmit, The Center for HIV Law and Policy, the National Organization of Black Law Enforceme…

UK: NAT letter to Guardian highlighting that police fears over occupational HIV exposure are unwarranted

A police officer in your article ( All in a night’s work, G2, 27 March) states getting HIV or hepatitis from uncapped needles as his biggest fear. Of all the risks police officers face, some highlighted elsewhere in the article, the risk of HIV infection is by far the lowest.

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.