Australia: Despite absence of risks, mandatory HIV testing of people who spit at police officers will remain

Police Minister Liza Harvey says the government stands by it’s mandatory blood test laws for offenders who spit at police officers.

On Friday leading HIV experts criticized the 2014 law brought in by the Barnett Government saying it had no basis in scientific fact.

Currently an offender who spits at a police officer can be forced to have a blood test to see if they are carrying the HIV virus.

Delegates at the Australasian HIV & AIDS Conference said they had “profound disappointment” in state government’s that brought in laws forcing blood tests for offenders who spit at police.

Scientists say its not possible for the HIV virus to be transmitted via saliva.

“Australia has a proud record of basing its HIV response on evidence-based policy,” Associate-Adjunct Professor Levinia Crooks, CEO of the Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine (ASHM) said yesterday.

“These laws are anti-scientific. The risk of transmission of HIV or other blood-borne viruses from saliva is practically zero. There is no justification for invading the privacy of people in custody by forcing them to undergo blood tests when there is no risk to the officer.”

“We understand the considerable risks faced by police and emergency services when they go about their jobs, but this is not the solution. There has never been a case of HIV transmission from spitting or biting in Australia,” she said.

Harvey, who is the Deputy Premier and Minister for Police, said the Barnett government has listened to the concerns of police officers and brought in the laws for their protection.

“The Liberal National Government had listened to the concerns of police officers.” the Minister said, arguing that in 2013 there had been a high level of instances where police could have potentially been exposed to infectious diseases.

“In 2013, 147 police were exposed to bodily fluids in a way that they could contract an infectious disease.

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

Minister Harvey said people were only forced to have a blood test when there was a possibility that an officer may have been exposed to infection.

“The testing will only happen if there is a possibility of the transfer of an infectious disease – for example the transfer of bodily fluid through broken skin.” Minister Harvey told OUTinPerth. “We are committed to protecting our officers on the front line, who are committed to protecting us.”

Published in Out in Perth

Australia: Delegates at Australia’s national HIV/AIDS conference condemn antiscientific laws mandating HIV testing for people accused of spitting at police officers

Media Release

Adelaide: Friday, 18 November 2016

Delegates at Australia’s national HIV/AIDS conference have condemned the governments of South Australia, Western Australia and Northern Territory over laws that force people accused of criminal offences to undergo mandatory HIV and blood-borne virus testing.

The conference passed a resolution this afternoon expressing its ‘profound disappointment’ in the laws, which make it mandatory for people to undergo blood tests if they are accused of spitting on or biting law enforcement personnel. The laws were passed in South Australia and Western Australia in 2014, and in the Northern Territory in 2016.

Australia has a proud record of basing its HIV response on evidence-based policy,” said Adjunct Associate Professor Levinia Crooks CEO of the Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine (ASHM). “These laws are antiscientific — the risk of transmission of HIV or other blood-borne viruses from saliva is practically zero. There is no justification for invading the privacy of people in custody by forcing them to undergo blood tests when there is no risk to the officer.”

The full text of the resolution passed by the conference is:

As researchers, clinicians, and civil society representatives, we are united in our commitment to a HIV response grounded in evidence and protective of the human rights of people living with and affected by HIV. This conference expresses its profound disappointment in the governments of South Australia, Western Australia and the Northern Territory for enacting anti scientific and counterproductive laws mandating HIV testing for people accused of spitting on law enforcement personnel, in the face of overwhelming evidence that such laws are neither effective nor necessary. HIV is not transmitted in saliva and these laws only serve to further marginalise and criminalise people with HIV. We call on all governments to establish evidence-based protocols that protect the wellbeing of police and emergency workers and the rights of people living with HIV.

The Australasian HIV & AIDS Conference is the premier medical/scientific conference in the Australasian HIV and related diseases sector. The 2016 Conference was held in Adelaide from 16–18 November, in conjunction with the Australasian Sexual Health Conference.

For all media enquires, please contact:

Media Contact: Petrana Lorenz — 0405 158 636 | petrana@arkcommunications.com.au

US: American Association of Nurses in AIDS Care publishes new Clinician Guidelines to HIV Criminalization

ANAC believes HIV criminalization laws and policies promote discrimination and must be reformed. The American Nurses Association (ANA) has co-endorsed ANAC’s position statement opposing HIV criminalization and joined ANAC in calling for the end to unjust laws that criminalize HIV. Thirty three states still have laws criminalizing HIV exposure. These laws fuel stigma by institutionalizing discrimination and are based on outdated beliefs. People living with HIV are still being arrested for HIV exposure. ANAC is a member of the Positive Justice Project, a national coalition to end HIV criminalization in the U.S. Read ANAC’s policy statement calling for the modernization of HIV Criminalization laws.

ANAC, with support from the Elton John AIDS Foundation has developed a downloadable tool: Clinician Guidelines to HIV Criminalization.

Download the clinician guidelines here.

BEYOND BLAME
Challenging HIV Criminalisation @ AIDS 2016, Durban

(29 min, HJN, South Africa, 2016)

On 17 July 2016, approximately 150 advocates, activists, researchers, and community leaders met in Durban, South Africa, for Beyond Blame: Challenging HIV Criminalisation – a full-day pre-conference meeting preceding the 21st International AIDS Conference (AIDS 2016) to discuss progress on the global effort to combat the unjust use of the criminal law against people living with HIV.

Attendees at the convening hailed from at least 36 countries on six continents (Africa, Asia, Europe, North America, Oceania, and South America).

Beyond Blame was convened by HIV Justice Worldwide, an initiative made up of global, regional, and national civil society organisations – most of them led by people living with HIV – who are working together to build a worldwide movement to end HIV criminalisation.

The meeting was opened by the Honourable Dr Patrick Herminie, Speaker of Parliament of the Seychelles, and closed by Justice Edwin Cameron, both of whom gave powerful, inspiring speeches. In between the two addresses, moderated panels and more intimate, focused breakout sessions catalysed passionate and illuminating conversations amongst dedicated, knowledgeable advocates

Key HIV transmission study shows no risk to HIV-negative partner when person with HIV is on suppressive antiretroviral therapy

By Simon Collins, HIV i-Base

Tuesday 12 July 2016

Published to coincide with IAS 2016 conference that opens in Durban next week, the PARTNER study showing the impact of HIV treatment (ART) on reducing transmission will benefit millions of people globally.

The results set a new challenge about whether transmission is anything other than a theoretical risk when someone is taking effective ART. This reverses the common assumption that, by definition, some level of risk always exists when one partner is HIV positive.

The PARTNER study provides good evidence that undetectable viral load might be a threshold below which sexual HIV transmission does not occur. The importance of the PARTNER study is that it included both gay and straight couples, that it measured risk in people who were not using condoms and that it estimated absolute risks.

Previous studies have been almost exclusively in heterosexual people who still reported high rates of condom use. The PARTNER study provides more than three times the amount of follow-up time from people not using condoms than all the previous studies combined. This includes 500 couple-years of follow up from people having anal sex without condoms.

Methods

Between September 2010 and May 2014 the PARTNER study prospectively enrolled 1166 serodifferent couples at 75 clinical sites in 14 European countries. Entry criteria included that the positive partner had an undetectable viral load on ART and that the couple were not always using condoms when they had sex.

Follow-up included routine sexual health checks (including HIV testing for the negative partners) and each participant also completed sexual history questionnaires to look at risk for different activities. Couples were only included in the final analysis when the most recent viral load for the positive partners was undetectable – defined as <200 copies/mL. The primary endpoint was the rate of within-partner transmissions, determined by phylogenetic analyses for all couples in which the negative partner became positive.

Results

Of 1166 couples enrolled, 1004 couples had at least one follow-up visit and 888 couples provided 1238 couple years of follow-up (median 1.3 years (IQR 0.8 to 2.0) per couple. This included 548 heterosexual (HT) couples and 340 gay male couples. The main reasons for data not being included in the follow-up analysis was: not yet reaching first follow-up visit (n=162), lack of HIV test (n=20), use of PEP or PrEP (n=9), no condomless sex (n=15), viral load >200 copies/mL (n=55) and lack of viral load result (n=17). There were no significant differences between couples who contributed to follow-up data compared to those who didn’t.

Although 11 people became HIV positive, none of these infections were phylogenetically linked transmissions. This was after at least 58,000 distinct times when couples had penetrative sex without condoms.

Baseline demographics were reported – as with all results – by categories of HIV status, gender and sexuality, with some differences between groups. This makes summarising results complex, but the median age ranged from 40 to 44 (with IQR overall ranging from 31 to 50 years). Gay men and HT women were a few years younger than HT men. Approximately 80% of the HT men were white compared to 70% of women and 90% of gay men. A higher percentage of gay men had education to college/university or higher (approximately 50% compared to 19% to 35% for heterosexuals. Although some of these differences were significant, other than there were fewer very young adults involved, they reflect the diversity of people living with HIV.

HIV positive partners had been on ART for a median of 10.6 (IQR: 4.3 to 15.6), 7.5 (IQR: 3.3 to 14.2) and 4.8 (IQR: 1.9 to 11.4) years, for HT men, HT women and gay men respectively. At baseline, couples reported having had sex without condoms for a median of 2 years (IQR 0.5 to 6.3), with differences between groups. For example, straight couples had been having sex without condoms for roughly 3 years (IQR 0.7 to 11 years) compared to 1.5 years (IQR 0.5 to 4 years) for gay couples. Approximately 23% of couples were in new/recent relationships (<6 months). Self-reported adherence to ART was similarly high at >90% in the three positive groups. Similar proportions of each group also had CD4 counts >350 cells/mm³ (85% to 91%).

Based on data from the negative partners, overall, couples reported having sex without condoms a median of 37 times a year (IQR 15 to 71), with gay couples (median 41; IQR 17 to 75) reporting condomless sex at least 22,000 times and heterosexual couples (median 35; IQR 13 to 70) more than 36,000 times. These were rough estimates from recall and partners did not always report the same numbers. Some couples reported sex outside the main relationship: 108 gay couples (33%) and 34 heterosexual couples (4%).

None of the 11 incident HIV infections in negative partners (ten gay and one heterosexual) were phylogenetically linked to the positive partner. Most people (8/11) reported having sex without condoms with people outside the main relationship. All samples (n=22) were successfully sequenced for pol and 91% (n=20) were sequenced for env. None of the partner sequences clustered together and the results were consistent after using using several different analyses. Additional details for these analyses are described in the online supplementary material. [2]

With zero transmissions, the upper limit of the 95% confidence interval (95%CI) for the overall study was 0.3 per 100 couple years of follow up (CYFU). Each category of specific risks, given that the calculations are a factor determined by study numbers and power, had different upper 95%CI boundaries: for example, 0.88 for HT sex overall vs 0.84 for gay sex overall.

This means that the upper 95%CI for receptive anal sex for gay men (2.70 with ejaculation and 1.68 without ejaculation) needs to be interpreted as a factor of sample size: there were fewer CYFU so the upper limit is by definition higher. While this calculation is developed to define the potential range within which the true risk might lie, the 95%CI should not be interpreted as indicating a risk that has been observed in the study. To illustrate this difficulty, the higher estimated risk for heterosexual anal sex with upper 95%CI of 12.71 and 8.14 (with and without ejaculation, respectively) are driven by fewer CYFU with this as the primary risk rather than any biological reason for this to be much higher. Of note though, more than 20% of straight couples reported anal sex.

The ongoing PARTNER 2 study continues to follow up gay couples in the PARTNER study and to recruit additional gay couples, in order to produce a similarly powered evidence base for gay mean as for straight couples, with follow up until 2019. [2]

Also of note during the study, 91 HIV positive partners reported other STIs (n=16 HT men, 16 HT women and 59 gay men) – closely matching STIs in the negative partners, also without any increased risk reported for HIV transmission.

An non-technical i-Base Q&A on these results is also online. [3]

An extension of the PARTNER study is continuing to collect further data on risk for gay men. [4]

Simon Collins is a community representative on the steering committee of the PARTNER study.

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These results are simple to understand – zero transmissions from over 58,000 individual times that people had sex without condoms. They are also notable for the complexity of the analysis that was needed to prove that none of the new diagnoses were linked transmissions from within the couple.

Together, this provides the strongest estimate of actual risk of HIV transmission when an HIV positive person has undetectable viral load – and that this risk is effectively zero. While no study cannot exclude the possibility that the true risk might lie within the upper limit of the 95%CI, even if the true value is actually zero due to some as yet unproven mechanism, the 95%CI can never be zero, just becomes increasingly close. Neither the presence of STIs nor likely viral load blips between tests had any impact in enabling transmission.

The results provide a dataset to question whether transmission with an undetectable viral load is actually possible. They should help normalise HIV and challenge stigma and discrimination.

The results challenge criminalisation laws that in many countries, including the United States, continue to imprison hundreds of people based on assumptions of risk that these results disprove, even when condoms are used and viral load is undetectable.

Activist Sean Strub, from the SERO project (www.seroproject.com) said:

“Hundreds of people living with HIV in the US have been charged with criminal offences for the perceived or potential risk of HIV exposure or transmission. Some are serving or have served long prison sentences for spitting, scratching or biting and others for not being able to prove they had disclosed their HIV positive status before having sexual contact (even in the absence of any risk of HIV transmission). HIV criminalisation has created a viral underclass in the law, further burdening a disenfranchised community, putting a disproportionate share of the shared responsibility for preventing sexually-transmitted infections on one party, and discouraging people at risk from getting tested for HIV.”

The results will also positively impact on the quality of life for both HIV positive and HIV negative individuals who are in serodifferent relationships, irrespective of the choice to use condoms.

The ongoing PARTNER 2 study is continuing to follow-up gay couples and is still enrolling new couples to achieve a similar statistical power for anal sex compared to vaginal sex. For further details of sites please see the PARTNER2 website. [3]

Reference

Rodger AJ et al for the PARTNER study group. Sexual activity without condoms and risk of HIV transmission in serodifferent couples when the HIV-positive partner is using suppressive antiretroviral therapy. JAMA, 2016;316(2):1-11. DOI: 10.1001/jama.2016.5148. (12 July 2016). Full free access.
http://jama.jamanetwork.com/article.aspx?doi=10.1001/jama.2016.5148
PARTNER study, supplementary material. JAMA (16 July 2016).
i-Base Q&A from the study.
http://i-base.info/qa-on-the-partner-study/
PARTNER2 website.
http://www.chip.dk/PARTNER-2

Canada: In Nova Scotia, glimmers of hope for science in the prosecution of HIV non-disclosure

Analysis by our HIV JUSTICE WORLDWIDE partner, the Canadian HIV/AIDS Legal Network.

Despite very few prosecutions, Nova Scotia has become an interesting place in Canada with respect to the criminalisation of HIV non-disclosure.

In April 2016, a trial judge from Antigonish ruled that non-disclosure before vaginal sex with a condom or a low viral load (< 1,500 copies/ml) did not amount to aggravated sexual assault.

Back in November 2013, a trial judge from Halifax acquitted a young man with an undetectable viral load who had not disclosed his HIV-positive status before sex without a condom.

These decisions represent significant developments in Canada, where the Supreme Court’s 2012 decision in R. v. Mabior opened the door to prosecutions even if a condom was used or the HIV-positive partner had a low or undetectable viral load.

Thanks to Nova Scotia judges, science might finally prevail.

In the recent Antigonish case, three medical experts testified, all aligning themselves with the Canadian consensus statement on HIV and its transmission in the context of the criminal law that was developed by eminent HIV experts in response to the 2012 Supreme Court decision.

They clearly testified that condoms are highly effective to prevent transmission (“protection is almost 100% when a condom is used,” said the Crown medical expert) and that being on treatment and having a low viral load dramatically reduce the chance of transmitting the virus.

Remarkably, they were also testimonies that the risk of HIV transmission in the absence of ejaculation is at most “negligible” and that HIV transmission from pre-ejaculate, if even possible, is not proven (there was no ejaculation with the first complainant and a reasonable doubt about ejaculation with the second complainant).

Based on the medical evidence before the Court, the trial judge concluded that the legal test of a “realistic possibility of HIV transmission” established in Mabior, which triggers the legal duty to disclose, had not been met. The accused was found not guilty of aggravated sexual assault.

Disappointingly, despite the absence of a “realistic possibility of HIV transmission,” the accused was nevertheless convicted of sexual assault causing bodily harm due to the psychological harm allegedly suffered by the complainants while waiting for their test results (neither of the complainants has contracted HIV).

Despite the progress made in acknowledging scientific evidence, this ultimate decision is highly problematic and arguably legally unfounded. It remains to be seen if the decision will be appealed.

The full decision can be downloaded from the Supreme Court of Novia Scotia’s website

Russia: Gay propaganda law especially impacting men with HIV who are being blackmailed for not disclosing their HIV status by anti-gay gangs

Russian crime gangs find gays easy targets for blackmail

By VERONIKA SILCHENKO and IRINA TITOVA

Originally published by the Associated Press on Jun. 5 2016

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In this Wednesday, May 25, 2016 photo, Alexander Loza, a legal adviser at Positive Dialogue, an organization that provides consulting services for gays, speaks to the Associated Press in St. Petersburg, Russia. Russian crime gangs find gays easy targets for blackmail. In the past two years, an increasing number of gays has fallen victim to criminal gangs operating through gay dating sites, rights groups say. (AP Photo/Dmitri Lovetsky)

“Many gay people in Russia lead a double life, unwilling to disclose their sexual orientation to their family or at work,” Loza said. “In the case of such setup dates, they are afraid to disclose their [HIV] status, to be accused of pedophilia, and therefore they are afraid to appeal to the police.”

ST. PETERSBURG, Russia (AP) — Criminal gangs in Russia, operating through gay dating sites, have found a lucrative new blackmail target: homosexual men.

A St. Petersburg economist, one of their latest victims, said several men burst into the apartment where he was meeting his date. Claiming that his date was under age, they threatened to call the police and to release a video they had secretly filmed unless he paid up.

The gay rights group Vykhod, or Coming Out, said they registered 12 such attacks in St. Petersburg in 2015 and at least six more gay men have come to them so far this year. LGBT activists believe the real number is far higher and say the attacks have increased in the past two years.

Since homosexuality finds little acceptance in Russian society, many gays keep their sexual orientation hidden from their families, friends and co-workers. This makes them easy extortion targets for criminals.

Vykhod spokeswoman Nika Yuryeva said most of the recent attacks have followed the same pattern as the one seen by the St. Petersburg economist.

Alexander Loza, a legal adviser at Positive Dialogue, an organization that provides consulting services for gays, particularly those living with the HIV virus, has heard similar stories.

“Many gay people in Russia lead a double life, unwilling to disclose their sexual orientation to their family or at work,” Loza said. “In the case of such setup dates, they are afraid to disclose their status, to be accused of pedophilia, and therefore they are afraid to appeal to the police.”

The activists said Russian criminals have been emboldened by a 2013 law that made it a crime to expose children to gay “propaganda,” part of a Kremlin-backed effort to defend traditional family values and counter the influence of what it considers a decadent West.

Alexander Zhelezkin, who manages outreach programs at Positive Dialogue, said the law was what made him decide to become a gay activist.

“Now, my coming out is my defense,” he said.

For prominent television journalist Anton Krasovsky, however, that move ended his career in Russia. He was fired after he came out on the air in 2013 and hasn’t been able to find a job in television since.

Krasovsky said it will be a long time before gays in Russia feel protected enough to speak publicly about their sexual orientation.

“To stop being afraid, they need to begin to trust the state where they live, but they don’t trust the state where they live now,” he said.

The St. Petersburg economist, however, did go to the police. He spoke to The Associated Press on condition of anonymity out of fear that his attackers, who know where he lives, would seek retribution if they learned that he had reported them.

The economist, who gave his age as “about 30,” said he thought they were lying about his date being a minor. But he said the attackers beat and threatened him — and suggested they had friends in the police force who they said would lock him up on fabricated charges.

He said they demanded more than 100,000 rubles ($1,500). One of them took his bank card and cleaned out his account, and they released him only after he agreed to transfer the balance the next day, he said.

The crime gangs who carry out such attacks are not necessarily anti-gay, but have identified a profitable niche where they feel they can operate with impunity, Loza and Yuryeva said.

The economist agreed.

“They commit these crimes not because they are homophobes — they are simply taking advantage of the situation,” knowing that few people would go to the police after such an experience, he said. “I think they are just common criminals who chose this kind of method.”

St. Petersburg police spokesman Vyacheslav Stepchenko said he had not heard about these blackmail cases and said he wasn’t aware of any anti-gay attacks being registered in the city in recent years.

He offered to check with the specific police station that the economist reported the crime to, but the economist didn’t want to draw public attention to his case by disclosing which station it was.

Timur Bulatov, an anti-gay activist who claims to have helped get a number of teachers fired after outing them as homosexuals, said he sees no need to resort to the blackmail used by criminal gangs.

“Why attack a sick person? Such a person needs treatment,” he said. “I have a bunch of legal methods to use to influence such a person, to put pressure on him.”

Bulatov, who wears camouflage outfits and carries a handgun in a hip holster, said gays are the “enemies” of Russian society and its children, but should be opposed only through legal means.

He said the law banning gay propaganda among minors was intentionally made vague so it can be applied in a wide range of circumstances. The law, for instance, has made it easy to target gay and lesbian teachers in Russia because they work directly with children.

The federal law was modeled on a 2012 St. Petersburg law authored by Vitaly Milonov, a city lawmaker and outspoken opponent of LGBT rights.

“This law is a preventive measure. It was introduced not to punish anyone, but to prevent such public actions as gay parades, because parents in Russia don’t want their children to see these things,” Milonov told the AP.

Milonov, who has a large portrait of the Russian Orthodox Church patriarch on his office wall, said his mission was to promote “normal” families with many children.

“There is no oppression of homosexual people in Russia,” he said. “When gay organizations complain of such harassment, they do it in order to get more money from soft-hearted Europeans.”

New report shows HIV criminalisation is a growing, global concern but advocates are fighting back

A new report released today shows that HIV criminalisation is a growing, global phenomenon. However, advocates around the world are working hard to ensure that the criminal law’s approach to people living with HIV fits with up-to-date science, as well as key legal and human rights principles.

Click on this link to read or download Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation.

What do we mean by ‘HIV criminalisation’?

HIV criminalisation describes the unjust application of the criminal law to people living with HIV based solely on their HIV status – either via HIV-specific criminal statutes, or by applying general criminal laws that allow for prosecution of unintentional HIV transmission, potential or perceived exposure to HIV where HIV was not transmitted, and/or non-disclosure of known HIV-positive status.

Such unjust application of the criminal law in relation to HIV is (i) not guided by the best available scientific and medical evidence relating to HIV, (ii) fails to uphold the principles of legal and judicial fairness (including key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof), and (iii) infringes upon the human rights of those involved in criminal law cases.

What is the impact of HIV criminalisation?

Understanding the potential negative impact of HIV criminalisation on public health is critical to making informed policy decisions.

The last few years have seen increasing interest among researchers in the area of HIV criminalisation and a push into new areas of enquiry to examine the impacts of the unjust application of criminal law.

The report summarises a body of research which shows that instead of delivering a public health benefit, HIV criminalisation is a poor public health strategy, exacerbating racial and gender inequalities and negatively impacting a number of key areas including: testing; disclosure; sexual behaviour; and healthcare practice.

How many countries around the world have HIV criminalisation laws?

Since our last report, we found an increase in the number of countries that specifically allow for HIV criminalisation: these could be stand-alone HIV-specific criminal laws, part of omnibus HIV laws, or criminal and/or public health laws that specifically mention HIV.

Some of this increase is due to laws enacted since 2013 in Botswana, Cote d’lvoire, Nigeria, Uganda and Veracruz state (Mexico), and some is due to improved reporting and research methodology.

Our analysis shows that a total of 72 countries have adopted laws that specifically allow for HIV criminalisation, either because the law is HIV-specific, or because it names HIV as one (or more) of the diseases covered by the law. This total increases to 101 jurisdictions when the HIV criminalisation laws in 30 of the states that make up the United States are counted individually.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_6

How many countries have prosecuted people living with HIV?

Prosecutions for HIV non-disclosure, potential or perceived exposure and/or unintentional transmission have now been reported in 61 countries. This total increases to 105 jurisdictions when individual US states and Australian states / territories are counted separately.

Of the 61 countries, 26 applied HIV criminalisation laws, 32 applied general criminal or public health laws, and three (Australia, Denmark and United States) applied both HIV criminalisation and general laws.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_7

Where have prosecutions recently taken place?

We found reports of at least 313 arrests, prosecutions and/or convictions in 28 countries during the report period, covering 1 April 2013 to 30 September 2015.

Of note, we are now able to include data on reported prosecutions in Belarus and Russia, which are likely to have been taking place at least since the enactment of a Belarusian public health law in 1993 and a Russian HIV criminalisation law in 1995.

The highest number of cases during this period were reported in:

• Russia (at least 115) • United States (at least 104) • Belarus (at least 20) • Canada (at least 17) • France (at least 7) • United Kingdom (at least 6) • Italy (at least 6) • Australia (at least 5) • Germany (at least 5).

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_8

HIV criminalisation in sub-Sarahan Africa of increasing concern

Where there was no HIV criminalisation at the start of the 21st century, 30 sub-Saharan African countries have now enacted overly broad and/or vague HIV-specific criminal statutes.

Most of these statutes are part of omnibus HIV-specific laws that also include protective provisions, such as those relating to non-discrimination in employment, health and housing. However, they also include a number of problematic provisions such as compulsory HIV testing and involuntary partner notification, as well as HIV criminalisation.

During the period covered by this report four countries in sub-Saharan Africa passed new HIV criminalisation laws: Botswana, Cote d’lvoire, Nigeria and Uganda.

Very few countries in Africa are now unaffected by problematic HIV criminalisation laws. The rise of reported prosecutions in Africa during this period (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on this continent, is especially alarming.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_9

Where has advocacy improved legal environments?

Important and promising developments in case law, law reform and policy have taken place in many jurisdictions, most of which came about as a direct result of advocacy.

During the report period, although an additional 13 jurisdictions in nine countries proposed new HIV criminalisation laws, seven of these were not passed, primarily due to swift and effective advocacy against them at an early stage. Advocacy in another ten jurisdictions in seven countries challenged, improved or repealed HIV criminalisation laws.

The legal environment relating to HIV criminalisation has improved in a small number of countries in sub-Saharan Africa, most notably in Kenya. On 18 March 2015, Kenya’s High Court ruled that its HIV criminalisation provision – Section 24 of the HIV Prevention and Control Act 2006 – was unconstitutional because it was vague, overbroad and lacking in legal certainty, particularly in respect to the term ‘sexual contact’.

The Court also found it contravened Article 31 of the Kenyan Constitution which guarantees the right to privacy because the law created an obligation for people with HIV to disclose their status to their ‘sexual contacts’, with no corresponding obligation for recipients of such sensitive medical information to keep it confidential.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_10

Using science as an advocacy tool

Increased knowledge about reduced infectiousness due to antiretroviral therapy has led to advocacy that resulted in a number of jurisdictions revising or revisiting their criminal laws or prosecutorial policies relating to HIV criminalisation, although progress has been frustratingly slow.

Following the ‘Swiss statement’, published in January 2008, a growing number of courts, government ministries and prosecutorial authorities have accepted antiretroviral therapy’s impact on reducing the risk of both HIV exposure and transmission.

However, scientific advances alone will neither ‘end AIDS’ nor end HIV criminalisation. Although the impact of antiretroviral therapy on infectiousness is an important advocacy tool, it must be remembered that many people with HIV do not have access to treatment (or are unable to achieve an undetectable viral load when on treatment) and that everyone has a right to choose not to know their status and/or start treatment and should not be stigmatised nor considered ‘second class citizens’ should they wish to delay diagnosis or antiretroviral therapy.

More work required

Despite the many incremental successes of the past few years, much more work is required to strengthen advocacy capacity. This is why a coalition of seven organisations launched HIV Justice Worldwide in April 2016.

We also need to be aware that HIV criminalisation does not exist in vacuum, and is often linked to punitive laws and policies that impact sexual and reproductive health and rights, especially those aimed at sex workers and/or men who have sex with men and other sexual minorities.

And, bearing in mind the stigma faced by those with, for example, hepatitis C and concerns over the sexual transmission of the Ebola and Zika viruses, as we move forward to eliminate – or modernise – HIV criminalisation laws, we must ensure that our work does not inadvertently lead to the further criminalisation of other communicable and/or sexually transmitted infections.

Click on this link to read or download Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation.

A note about the limitations of the data

The data and case analyses in this report covers a 30-month period, 1 April 2013 to 30 September 2015. This begins where the original Advancing HIV Justice report – which covered the 18-month period, 1 September 2011 to 31 March 2013 – left off. Our data should be seen as an illustration of what may be a more widespread, but generally undocumented, use of the criminal law against people with HIV.

Australia: Southern Australia new legislation to soon enforce mandatory blood testing of offenders for spitting at, or biting police officers

MORE than 100 police officers are being spat at each year, exposing them to infectious diseases and raising the concerns of their union.

Police figures show 111 officers were spat at in 2013 and that total has remained steady each year since, although they refused to release new figures.

South Australian Police Association president Mark Carroll said he hoped new legislation, which is expected to soon become law, enforcing mandatory blood testing of offenders who assault police would protect his members.

“When, in the course of duty, officers are spat on, bitten or otherwise assaulted in a way involving an exchange of bodily fluids, it’s essential that these officers have access to blood samples from the assailant that can be tested,” he said.

The comments come after the sentencing of Brandon William Peter Humes who spat on an officer during an arrest him and told him ‘I don’t give a f — k … I have HIV AIDS and now you’ve got it too’.

In sentencing Humes, 27, this month District Court Judge Rauf Soulio said the officer had to restrain Humes which left him unable to immediately “decontaminate himself”.

“Your comments about HIV caused him great distress,” Judge Soulio said.

“He felt unable to hold his infant daughter, who was born prematurely, for fear of passing on a communicable disease.

“He had to deal with the fear of waiting for blood results, which were, fortunately, negative.”

Humes was sentenced to four years and six months jail with a non-parole period of two years for armed robbery and the spitting offence in June last year.

Also, Senior Sergeant Alison Coad contracted oral herpes after being spat on by a criminal.

SAPOL would not comment on the medical history of officers but said “this type of incident (spitting) is always of concern.”

“This type of behaviour is totally inappropriate and can result in offenders facing very serious charges,” a spokeswoman said.

The WA Police Union has recently requested officers be equipped with spit hoods because of a spike in incidents there.

Orginally published in The Advertiser

US: Study published in the Journal Medicine finds a level of bias due to assumptions about the criminal intent of HIV-positive people and outdated laws

A recent study examining current HIV criminalization laws found a level of bias due to assumptions about the criminal intent and violent nature of HIV-positive people, according to a study published in the journal Medicine.

Currently, states can hold a person liable if they know they are HIV-positive and commit a sex crime that has the possibility of transmission. An HIV-positive person can also face criminal charges if they demonstrate intent to transmit the virus, whether or not transmission actually occurred. HIV criminalization laws were created during the era prior to antiretroviral therapy when the risk for transmission was extremely high. Although HIV treatment and prevention has advanced, these laws have not evolved, the study found. However, the Department of Justice recommended that states modernize laws to reflect the low risk of HIV transmission from biting, spitting, throwing body fluids, insertive/receptive oral intercourse, and antiretroviral therapy.

The current study examined data from males aged 20 to 49-years-old from 1999 to 2012. The researchers sought to determine whether a national state-specific survey overstates estimates of HIV is due to the exclusion of inmates and whether or not HIV-positive inmates are more violent than HIV-negative inmates, thus creating bias. Researchers gathered data from the National Health and Nutrition Examination Survey (NHANES). The data gathered by the surveys included demographic, dietary, and health-related markers of a representative sample of 5000 per year. Data was also collected from the Survey of Inmates in State, Federal, and Local custody from 1997 to 2004. Data from the Survey of Inmates in Local Jails was collected in 1996 and 2002. In both surveys, inmates were asked whether or not they had been tested for HIV and what the results of the test were.

Researchers found approximately 65% of the inmates were non-Hispanic Whites. The data from NHANES showed non-Hispanic Whites declined almost 5% over the period of time, while the non-Hispanic Other group doubled. In 1999, about 41.4% of inmates had a high school diploma, which increased to about 55.7% by 2012. Researchers said this could be due to the fact that inmates with a high school diploma decreased from 47.4% in 1999 to 35.4% in 2012. Highly advantaged respondents increased their responsiveness for NHANES, with about 62.1% of respondents having some college education in 2012. Researchers state that the shift in educational distribution between the 2 surveys could be indicative of HIV prevalence being concealed and distorted when institutions concentrate on disadvantage and do not include inmates in the samples. Inmates with HIV increased to 3.3% in 2012, while lab work by NHANES showed that HIV prevalence went down to .42% in 2012. In 1999, 14.5% of HIV-positive inmates were incarcerated for violent crimes and 22.1% of non-HIV infected were incarcerated for those crimes. In 2012, HIV-positive inmates incarcerated for violent crimes was 8.1% lower than the overall population. Researchers said that HIV-positive inmates were more likely to be incarcerated for drug and property crimes.

The data indicated that HIV-positive inmates are much less violent than HIV-negative inmates. Due to poverty and low levels of education, inmates are typically excluded in national-based surveys. Researchers said a bias is present due to this exclusion, which indicates a need for a reexamination of HIV prevalence rates.

Researchers said that HIV criminalization laws are very presumptuous about HIV-positive people due to the laws being created over 30 years ago when there was quite a bit of fear and mystery surrounding the disease. To make these surveys more representative, the study concluded social scientists and legislators need to reassess the evidence that claims HIV-positive individuals are dangerous and have harmful intentions.

Originally published in Specialty Pharmacy Times

Study abstract available here