UK: Avon and Somerset police statement over risk of HIV from spitting allegedly based on National Police guidelines

Police say false HIV claims over spitting were taken from national guidelines

Avon and Somerset Police still have not retracted their statement despite pressure from campaigners

The police force for Bristol and the surrounding areas say false claims made about the transfer of HIV were taken from national guidelines.

Avon and Somerset Police announced last year it would be introducing the use of spit guards in 2018 to remove the risk of officers catching diseases like the human immunodeficiency virus or hepatitis.

However, campaign groups were quick to point out HIV cannot be passed on through saliva and accused the force of “praying on people’s prejudices.”

The force did apologise for “any offence caused” to people living with HIV or Hepatitis B or C but still has not retracted the statements despite calls from campaigners to do so.

In January 24, a Freedom of Information request revealed no Avon and Somerset Police officers had caught an infection disease after being spat at since 2012/13.

When asked by the Bristol Post if the force would retract the statements about HIV, a spokesman said on January 25: “The information we used previously in the roll-out of spit guards was based on National Police Chiefs Council (NPCC) guidance.

“Following feedback from the public and consultation with local charities, Assistant Chief Constable Stephen Cullen asked the NPCC to seek medical opinion. As a result of ACC Cullen’s representations the NPCC has altered its guidance to forces.”

The Bristol wing of the HIV advocacy group ACTup! Launched a petition calling for the force to retract the statement.

A spokesperson for the group said officers deserve not to be spat at while working and the group is not calling for the recall of spit hoods but raised issues with the “poorly researched” press announcement.

On November 17 Avon and Somerset Police announced it would be introducing the use of ‘spit hoods’ across the force area from next year. The hoods made of mesh are shaped like a plastic bag and are put over the heads of suspects who had threatened to spit, have attempted to spit or have spat before.

The National Police Chiefs Council, which issues guidance to police forces across the UK, said the advice on spit guards has not changed since it published a report in March 2017, but specific guidance on HIV was sent to police forces after feedback was received by Avon and Somerset.

A spokesperson said: “Our position paper on this was published back in March last year and our overall position on this has not changed. However, after receiving feedback from colleagues in Avon and Somerset we wrote to forces to give specific guidance on HIV and spit guards – entirely in line with our position.”

The police chief’s council guidance on spit guards released in March last year says the national picture for blood-borne viruses like HIV affecting officers is “unclear “.

It adds: “There are annually a very significant number of officers who are receiving precautionary treatment to prevent blood-borne viruses initial following spitting and biting incidents. Some of this treatment is intrusive, debilitating and can have a significant impact on officers’ personal lives.”

The conclusion reads: “The NPCC position is that the risk of transfer of blood-borne viruses through spitting or biting is very low, however the impact of infection would be extremely high.”

HIV is found in many bodily fluids of a sufferer including semen, vaginal and anal fluids, blood and breast milk.

The disease is most commonly contracted through unprotected sex and the sharing of needles. NHS England states HIV cannot be contracted through saliva.

Published in the Bristol Post on Jan 30, 2018

UK: Police accused of fear mongering by playing up the risks of HIV and hepatitis C transmission through spitting

Police accused of exaggerating risks of HIV to introduce spit guards

Force plans to issue guards to officers from January, saying people infected with blood-borne viruses use spitting as a weapon

A police force has been accused of fear mongering and stigmatising sufferers of hepatitis C and HIV by playing up the risks of transmission of blood-borne viruses as a reason to introduce spit guards.

Avon and Somerset police announced their plan to issue spit guards to all operational officers from January next year. “Each day we face being spat at, putting us at risk of HIV, hepatitis and tuberculosis and the degrading assault can have a lasting psychological impact,” said Assistant Chief Constable Stephen Cullen.

Spit guards are tight mesh hoods that officers can pull over the heads of suspects resisting detention to stop them from spitting or biting. They are used by 25 forces but have been criticised by human rights groups.

Avon and Somerset’s announcement came with an account by an officer, named John, who said people infected with blood-borne viruses use spitting as a “weapon”. He described an incident in which he arrested a drunk woman who had hepatitis C after she attacked a paramedic.

“She was continually spitting, spit that was bloody. It was disgusting; she was trying to infect us,” he said, recounting how officers donned riot gear to protect themselves as they stripped the detainee for her safety. “After the shift we all went home to our kids wondering what we were taking home.”

Rachel Halford, the deputy chief executive of the Hepatitis C Trust, said she agreed that police should be protected from health risks, but rejected the force’s implication that the virus could be transmitted through spitting.

“Hepatitis C is a blood-borne virus and is therefore only transmitted through blood-to-blood contact. The virus cannot be transmitted via spit,” she said.

“Stigma and misinformation about hepatitis C and other blood-borne viruses is a key challenge faced by patients, who are already disproportionately from the most marginalised and disadvantaged groups in society. Many patients report feeling ‘dirty’ and experiencing social exclusion due to misinformation about transmission risks.”

Kat Smithson, the director of policy and campaigns at NAT (National Aids Trust), said Avon and Somerset’s claims about HIV and hepatitis C were wrong and stigmatised people with the conditions.

“HIV is irrelevant to the debate about spit hoods because spitting simply is not an HIV transmission route,” she said. “In the history of the epidemic, there has never been a case of HIV being passed on through spitting, even when the spit contains blood.”

According to Avon and Somerset police, the restraints will be used only when a person threatens to spit, has attempted to spit or has already spat, and only when officers’ body-worn cameras are switched on.

Despite those safeguards, Deborah Coles, the director of Inquest, raised concerns over their introduction to another police force. “There should be no doubt spit hoods are a use of force and have the potential to cause acute trauma and injury,” she said.

“We know from our work that mental health concerns or other difficulties often sit behind agitated behaviour. Our fear is spit hoods will become the default response and used against vulnerable detainees.

“We had hoped that after the restraint death of James Herbert, Avon and Somerset police would have prioritised safer, more humane policing methods with a focus on de-escalation and detainee welfare.”

Avon and Somerset’s police federation backed the decision, which the force said was in support of the national federation’s proposed assault on emergency workers (offences) bill.

Vince Howard, the chairman of Avon and Somerset police federation, said: “This option affords those officers, who are increasingly subject to this abhorrent act, the opportunity to protect themselves from the risks of serious communicable diseases.”

Data for spitting incidents reported on the Welfare Information Form shows there have been 79 spitting incidents out of 487 recorded assaults since April, which a force spokesman said was a sharp increase on previous reports.

 

UK: The Assaults on Emergency Workers (Offences) Bill proposes mandatory HIV testing following an alleged spitting/biting assault on frontline staff

Stabbed, Spat At, Punched: Emergency Workers Tell HuffPost UK Why New Law Is Needed To Protect Them: Now PM backs Bill to protect 999 staff from assault

A new law to protect emergency workers from assaults has won the personal backing of Theresa May after police, paramedics and nurses lobbied MPs for tougher sentences.

A private members’ bill to specifically target abuse against 999 staff has secured the Prime Minister’s approval, HuffPost UK has been told.

The Assaults on Emergency Workers (Offences) Bill, tabled by Labour MP Chris Bryant, is due to have its Second Reading in the Commons on Friday and is now expected to get enough Parliamentary time to get on the statute book.

Dubbed the ‘Protect The Protectors Law’, the bill follows a rising number of incidents where NHS, firefighters and police staff have been abused, attacked or spat at in the line of duty.

The legislation will for the first time deem assaults on emergency staff as “aggravated”, and subject to heavier sentences. It will also force suspects to provide samples of saliva or blood to ensure rapid testing of HIV and other illnesses.

Asked if the PM was giving her personal support to the bill, a No.10 spokesman told HuffPost UK: “That’s one the Government is backing, so you can take that as a ‘yes’.”

The Ministry of Justice and Home Office are expected to signal on Friday their support for the new legislation.

Backed by trade unions and staff bodies such as the Police Federation, an alliance of emergency workers held a ‘drop-in’ lobby of MPs in the Commons on Wednesday.

Bryant told HuffPost UK: “I’m really encouraged by how many MPs have come along, listened to emergency workers and said they’ll support the Bill.

“It’s not over until the votes are counted though and I’m not counting my chickens yet. All sorts of things could still go awry.”

Alan Lofthouse, national ambulance officer for the Unison trade union, said: “It’s only right that the full force of the law is used against anyone who attacks those trying to save lives and protect the public. This bill will help the courts to bring offenders to justice.”

HuffPost UK talked to five emergency workers, each with their own stories of why a new law was needed.

Read more at: http://www.huffingtonpost.co.uk/entry/theresa-may-backs-new-law-protecting-emergency-workers-from-assaults-in-line-of-duty-five-case-studies_uk_59e7b1cce4b00905bdae7e17

Canada: Legalities around disclosing HIV and other STIs in Canada

Have an STI? What you’re legally obligated to disclose

Jenelle Marie Pierce was 16 when she found out she had genital herpes.

“I was made to sleep on the floor at slumber parties because people thought they were going to contract my herpes from me,” the now 35-year-old from Caledonia, Mich., told Global News. “People can be cruel and really it’s just a product of a lack of information.”

Finding out you have a sexually transmitted infection (STI) may seem like the end of your love life, but according to experts, it’s not true. With the right amount of education, communication in disclosing your status and safe sex practices, you can foster a healthy intimate relationship.

In Canada, STI infections are on the rise. Between 1998 and 2015 (the most recent national data available), chlamydia — the most commonly reported STI in Canada — has risen from 39,372 to 116,499 annual cases among all ages and genders, and gonorrhea rates increased from 5,076 to 19,845 in the same time period. Infectious syphilis rates rose dramatically from 501 to 4,551 cases.

But aside from the obvious health implications these infections have, their emotional burden can be almost equally dangerous. A 2014 study published in the journalAIDS Patient Care and STDs found that STI-related stigma was associated with decreased odds of testing for STIs and decreased willingness to notify a partner of an STI among young African American men.

A similar study from 2009 that was published in Perspectives on Sexual and Reproductive Health also found that STI-related stigma was a barrier to adolescents’ screening behaviour.

“I’ve been called everything from a slut to a whore. People assume that you are a cheater, you are promiscuous … But it [affects] people from all walks of life, all backgrounds. It’s across the board. People from everywhere contract these infections.”

The key is to be open and ethical about your STI to prevent the spreading of any infections.

Legalities around disclosing

In Canada, it’s a crime not to disclose HIV or another STI before having sex that poses a “significant risk of serious bodily harm.” However, most prosecutions have been strictly related to HIV and hardly any have been related to herpes, syphilis, chlamydia or other STIs.

The legal obligation to disclose your status was established in the 1990s, but for people with HIV, the law became harsher in 2012. That’s when the Supreme Court of Canada decided that people living with HIV are obligated to tell their partner about their status before engaging in sex that poses a “realistic possibility of HIV transmission.”

In practice, what that means is if you’re going to engage in vaginal or anal sex and are HIV positive but don’t tell your partner ahead of time, you could face criminal prosecution if you don’t use a condom or if you use a condom but have a viral load higher than “low.”

According to advocates, this test has been applied inconsistently by the courts without proper regard to the science.

“The science is now established that there is effectively zero risk of transmission to a sexual partner if you have an undetectable viral load,” Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, told Global News.

There have been conflicting court decisions for people with HIV with an “undetectable” viral load. Some have been prosecuted and other’s haven’t.

At least 184 people have faced charges related to HIV non-disclosure after sex in Canada, one of the highest rates of HIV criminalization in the world, Elliott added. Only a few prosecutions have been related to herpes and syphilis. There haven’t been any prosecutions for non-disclosure of chlamydia, gonorrhea or HPV.

Public health

Besides the legal obligations laid out by the Canadian criminal code, some experts believe it’s important to be transparent about your STI in the name of public health.

“You want to be upfront, you want to tell the person, and you also want to reassure them that you will be performing safe and intimate contact,” Jason Tetro, a Canadian microbiologist, told Global News.

Tetro, who used to work in HIV research and policy, says STIs are becoming more and more resistant to antibiotics, which means they’ll be even more of a headache to treat — so, why not be open from the beginning, before any sexual contact?

“If you happen to be exposed you may be facing a very long and difficult antibiotic treatment before you’re clean, so the fact is, if we all work together to make sure we are not spreading these bugs, it’s going to improve public health overall.”

Having the awkward conversation

There are two approaches to talking to your partner, according to Pierce.

The first is being completely open about your STI status from the get-go. For those who are comfortable laying it out on the table, they can add their status to their dating profiles. The reason behind this approach, explained Pierce, is that you have a lower chance of getting your feelings hurt.

The second approach is more discreet. Just like any relationship that grows organically, some private matters like revealing your STI, are not discussed until trust is gained.

Of course, you need to disclose before there is any sexual contact.

“The idea behind that is that nobody actually puts everything out there on the table when they start dating. That’s kind of the whole dating process, it’s learning about somebody as you go,” Pierce said.

“Nobody says ‘I have horrible debt and my dad is an alcoholic and my brother is in prison’… [it’s a] myriad of things that might be a deal breaker for somebody.”

It really depends on who you are, there is no right or wrong way to do it, she added.

Once you’ve figured out the timing, you then need to figure out the method.

Avoid finding yourself in the heat of the moment. Find a private and quiet place to have the conversation, and approach it in a practical way, Pierce says. Lay out the facts in a neutral and non-emotional manner, because you don’t want to influence their response.

“It’s OK to acknowledge that it might be awkward or weird, but be as open and clear-cut as you can.”

Once you’ve disclosed your status and laid out the options for safe and protected sex, you have to let them decide if they want to take the relationship to the next level. Pierce’s biggest piece of advice? Don’t take the person’s response — positive or negative — personally.

Pierce, who has had a successful career and has had many healthy relationships, says you shouldn’t get discouraged. It’s better to be honest and straightforward, and foster a partnership with someone who will work with you to keep the STI contained to one person.

Published in Global News on October 16, 2017

US: "Undetectable = Uninfectious" isn't reflected in HIV criminalisation laws in several U.S. states

Undetectable = Uninfectious. So why are people with HIV still being criminalised for having sex

By now, most people in the HIV community know that having an undetectable viral load means being uninfectious. It’s just science! But this information isn’t reflected in laws in several U.S. states, dating back to the 1980s and 1990s, that criminalize people with HIV for having sex without telling partners their HIV status — even if they use a condom on top of being undetectable.

Thankfully, there’s a movement of HIV-positive people underway that’s slowly getting states to strip back their outdated criminalization laws. It’s called the Sero Project — and at the 2017 AIDSWatch conference in Washington, D.C., we talked with folks from all over the country who are part of it.

“There’s still criminalization that impacts so many people — and it’s driven by fear,” says Paul Yabor, a longtime Philadelphia-based HIV activist (who sadly died earlier this year after this video was made).

“I’ve experienced this,” says Ken Pinkela, Sero’s director of communications and military policy, who was imprisoned and dishonorably discharged from the U.S. Army for having sex without disclosing his status. “Wrongful accusals and allegations that didn’t exist.”

Says Gina Brown, a community organizer for the Southern AIDS Coalition: “The thing that bothers me the most is that [these laws] keep people from knowing their status. So, if I know that I can go to jail because I have sex with someone whether I use a condom or not — you know, I don’t want to know! And I do community work in New Orleans, and I hear that all the time.” She also decries “the fact that no other sexually transmitted virus is criminalized.”

Says Derrick Mapp, HIV health counselor and national trainer at San Francisco’s The Shanti Project: “Me being HIV-positive — I’m not a criminal. It’s something that happens. Spitting, scratching and fighting — these things don’t transmit HIV.” Yet, HIV-positive folks have often ended up doing years in jail for exactly those actions.

Remember Eric Leonardos from the TV show Finding Prince Charming? He’s part of the decriminalization fight as well: “Martin Luther King Jr. says that an unjust law is no law at all,” he declares. “And these are unjust laws and they have no place.”

Watch our video (edited by Michael Faber) and hear them in their own words. Then consider reaching out to Sero and getting involved in the fight. They’ve already had victories in CaliforniaColorado and Iowa. Maybe, with your help, your state could be next!

Tim Murphy has been living with HIV since 2000 and writing about HIV activism, science and treatment since 1994. He writes for and has been a staffer at POZ, and writes for the New York Times, New York Magazine, Out Magazine, The Advocate, Details and many other publications. He is also the author of the NYC AIDS-era novel Christodora.

Published in the Body on Oct 10, 2017

US: CDC acknowledgment that Undetectable = Untransmittable is likely to have a huge impact on legal fights over HIV disclosure laws

CDC joins consensus on HIV that ‘Undetectable = Untransmittable’

The historic announcement has significant implications for HIV advocacy efforts.

In a statement acknowledging National Gay Men’s HIV/AIDS Awareness Day Wednesday, the Centers for Disease Control and Prevention (CDC) embraced a scientific consensus with profound impacts. “When [antiretroviral therapy] results in viral suppression, defined as less than 200 copies/ml or undetectable levels, it prevents sexual HIV transmission,” the statement said.

It was the first time the agency acknowledged what several massive studies have consistently found: when an individual’s HIV viral count is undetectable, it is virtually impossible for them to transmit HIV to a sexual partner. “Across three different studies, including thousands of couples and many thousand acts of sex without a condom or pre-exposure prophylaxis (PrEP), no HIV transmissions to an HIV-negative partner were observed when the HIV-positive person was virally suppressed,” the statement continued. “This means that people who take ART daily as prescribed and achieve and maintain an undetectable viral load have effectively no risk of sexually transmitting the virus to an HIV-negative partner.”

Hundreds of experts and organizations had already signed onto a massive “Undetectable = Untransmittable” (U=U) consensus statement organized by the Prevention Access Campaign. Bruce Richman, executive director of the campaign, responded to the news by telling HIV Plus Magazine, “This is the moment we have been waiting for!”

The implications of the CDC acknowledging that there is “effectively no risk” are massive in terms of both politics and policy. As HIV Plus Magazine notes, nearly half of all HIV-positive people in the U.S. have brought their viral load to an undetectable level through treatment, so it’s significant to recognize that they are not contributing to the epidemic.

As the CDC continues to roll out messaging and information, it will likely not only impact prevention campaigns, but also legal fights over HIV disclosure laws. There are 38 states that have some version of a law that criminalizes perceived or potential exposure or transmission of HIV, and another six where individuals with HIV have been prosecuted under broader statutes. These laws — some even three decades old — rely on antiquated science and punish people with HIV for not disclosing their status to sexual partners even when they pose no risk of transmission.

Though passed with the intention of trying to protect people from HIV, their enforcement actually makes it more difficult to fight the epidemic. Studies have shown that the laws discourage people from getting tested (so as to avoid culpability), which means it’s more likely that people don’t know they’re positive and aren’t in treatment. The laws simultaneously create a false sense of security, such that men who believe their state has such a law are actually slightly more likely to engage in riskier sexual behaviors like condomless sex. Instead of protecting people from HIV, these laws are actually making it far easier for HIV to spread while simultaneously reinforcing stigma against people who are HIV-positive.

The CDC’s embrace of the consensus that “undetectable equals untransmittable” could be an effective buffer for the enforcement of these laws, if not the basis for challenging them directly. In 2014, the Iowa Supreme Court issued a landmark ruling overturning a conviction under that state’s HIV criminalization law specifically because of the science showing that the individual could not have transmitted the virus because of his undetectable viral load. That same year, Iowa also became one of the first states to start to dismantle its HIV criminalization laws, which had previously been some of the harshest in the country.

Overcoming these stigmatizing laws and spreading knowledge about the research on undetectable viral loads is essential to the ongoing fight against HIV. As the CDC statement notes, men who have sex with men are still “severely affected by HIV,” representing two-thirds of all new diagnoses in the United States. Some studies have indicated that more transmissions are happening from people who have been diagnosed but who have not entered treatment. The case could not be stronger that getting them into treatment will, in most cases, halt their transmission of the virus.

Ideally, the CDC will build off this endorsement of the science and do more to advocate for that treatment. Unfortunately, President Trump has proposed massive cuts to the funding that helps supply 11.5 million people worldwide with antiretroviral drugs, and the health care policies he supports also make it harder for people with HIV to afford the care they need. It’s a good sign that the government has caught up with the science, but now it will be essential for officials to fund the policies that science supports.

Published in Think Progress on September 28, 2017

 

Canada: Two staff members of the Canadian HIV/AIDS Legal Network discuss how the 'Undetectable = Untransmittable' campaign might best be understood to impact HIV criminalisation advocacy

U=U and the overly-broad criminalization of HIV nondisclosure

By Nicholas Caivano and Sandra Ka Hon Chu

People living with HIV in Canada have been charged with some of the most serious offences in the Criminal Code, even in cases of consensual sex where there was negligible or no risk of HIV transmission, no actual transmission and no intent to transmit.

The Undetectable=Untransmittable (“U=U”) campaign is based on scientific research, including the ground-breaking PARTNER study, establishing that when a person living with HIV on treatment maintains an undetectable viral load for at least six months, the risk of transmitting the virus through sex is effectively non-existent. As advocates for persons living with HIV await action from federal, provincial and territorial governments to address the overly-broad criminalization of HIV non-disclosure, how might the U=U campaign and the results of the PARTNER study impact ongoing prosecutions under the current state of the law?

Canada has the dubious distinction of being a world “leader,” after Russia and the United States, in prosecuting people living with HIV. In 1998, the Supreme Court of Canada (SCC), in R. v. Cuerrier, decided that people living with HIV have a legal duty to disclose their HIV-positive status to sexual partners before having sex that poses a “significant risk” of HIV transmission.

In 2012, in R. v. Mabior, the SCC ruled that people living with HIV have a legal duty to disclose before having sex that poses a “realistic possibility of HIV transmission,” which the Crown must prove. Commenting specifically in the context of a case involving penile-vaginal sex, the Court stated that “as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used.”

In Canada, people who face criminal charges related to HIV non-disclosure are typically charged with aggravated sexual assault, a criminal offence usually reserved for the most violent rape, on the theory that the absence of disclosure renders a partner’s consent to sex invalid. Despite the requirement of a “realistic possibility” of transmission, charges are being brought, even when people living with HIV engage in conduct that, based on medical evidence, poses a negligible possibility of transmission.

As U=U makes clear, the available information about HIV transmission has changed dramatically since the SCC’s decision in 1998. The results of the PARTNER study add to the mounting pile of evidence available to assist courts in making sure the law is consistent with science and with human rights.

Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

Nicholas Caivano is a lawyer and Policy Analyst at the Canadian HIV/AIDS Legal Network, where he works on human rights issues related to access to harm reduction services and access to medicines, and leads the work on law reform possibilities for HIV criminalization in Canada.

Sandra Ka Hon Chu is the Director of Research and Advocacy at the Canadian HIV/AIDS Legal Network, where she works on HIV-related human rights issues concerning prisons, harm reduction, sex work, women, and immigration.

Norway: Activists concerned about latest proposals to change Norway's HIV law

Critical to changes in section 237 of the Criminal Code

Reidar Engesbak, April 26, 2017

(Google translation from http://blikk.no, original post below)

The government last week presented a proposal – Prop. 120 L (2016–2017) – for penalties on transmission of infection and endangered spread of infection.

The Ministry of Justice’s submitted to the Storting a proposal for amendments to section 237 of the Criminal Code, which mainly follows the recommendations of the statutory committee that were appointed on the basis of criticism of the current criminal law regulation.

The law committee resulted in the NOU “About Love and Cooling Tower – Criminal Justice in Major Infectious Diseases.”

“I am pleased that we now propose a regulatory framework that addresses the medical development,” said Per-Willy Amundsen, Deputy Minister of Justice, in a press release.

The proposal entails, among other things, clarification that criminal liability is not imposed when appropriate contingency measures have been observed. This includes, among other things, successful medical treatment of HIV infection. Emphasis has been placed on the fact that the knowledge base on the treatment of HIV infection has changed in recent years and that the infection risk from well-treated HIV-positive individuals must be considered minimal.

The government also proposes a change in the Criminal Procedure Act, which allows the police to routinely investigate the infectious status of persons suspected of rape or other serious sexual assault.

“The proposal means that we can be clarified faster than today if the victims have been exposed to a risk of infection. It is important for the government to strengthen the offender’s position in criminal matters, and this change will contribute to that, “Amundsen said in the press release.

Contrary to UNAIDS ‘recommendations

The user organization New Plus – Hivpositives National Association is not so excited. The proposals, according to New Plus’s view, involve a number of things that will worsen the legal situation of those living with HIV.

“What is positive with the bill is that it is suggested that you can not prosecute people who have been negligent and that it is now necessary to commit gross negligence in order to be prosecuted,” said Kim Fangen, Managing Director of New Plus.

New Plus nevertheless believes that the boundary is still unclear. “It is still not the case that actual transmission of infection will be required in order to be punished. Consequently, the provision will still violate UNAIDS ‘recommendations, which state that punishment can only be used where there is a person who is aware that he or she has HIV or with the knowledge and willingness to infect another and infection is actually transmitted.

A little impractical

The proposition is for people to be treated for successful treatment to be exempted from punishment. It’s a suggestion New Plus applaudes. “However, the proposal implies that one can only be exempted from punishment after successful treatment and has been with his partner for prior infection prevention guidance from healthcare professionals, as well as the consent of the partner after this. This scheme applies today only to persons living in marriage or marriage-like relationships. The Ministry therefore wishes to extend the personal circle that will be covered in principle, it will apply to all,” said Fangen to Blikk Nett.

New Plus believes the scheme is impractical. “We can hardly see for ourselves that you want to bring a man for two weeks to the GP to get such consent. It will soon become most relevant for those who have been together for so long that one will nevertheless be covered by today’s wording about marital-like relationships. In any event, this means that an obligation to inform sexual partners is forced for persons who are nevertheless not infectious. People who are on successful treatment will not be able to transfer infection to others, says Fangen, and refers to statements by Professor Jens Lundgren at Rigshospitalet in Denmark.

“When you know at the same time how little knowledge exists in the society about HIV, this means that you can quickly find yourself in a very vulnerable situation to those you want to have sex with, without even jeopardizing the other.

Increased penalty frame

The Ministry of Justice’s proposal also wishes to raise the penalty frame for gross negligence from 3 to 6 years through a new provision in the Act. “This is very serious because it sends a signal about the severity of these actions and could make it even more stigmatizing to live with HIV,” Kim Fangen points out.

“We know that most infections occur when the person who has the virus does not even know that they are infected. These penalties will continue to hit people who have, in their ignorance, exposed others to infectious persons and people who can not actually infect anyone, but because they have not been open about status and conducted infectious guidance can be punished nevertheless. This is believed to mean that fewer will be open about HIV status and that people living with HIV will feel further stigmatized, “said Kim Fangen to Blikk Nett.

“We therefore see no reason to cheer over this and will continue the fight to completely decriminalize HIV.


Kritisk til endringer i Straffeloven § 237

Regjeringen la forrige uke fram et forslag til straffebestemmelser om smitteoverføring og allmennfarlig smittespredning.

Justisdepartementets proposisjon (Prop.120L) til Stortinget et forslag til endringer i Straffelovens paragraf 237, som i hovedsak følger opp anbefalingene til lovutvalget som ble oppnevnt på bakgrunn av kritikk mot den gjeldende strafferettslige reguleringen.

Lovutvalget resulterte i NOU-en «Om kjærlighet og kjøletårn — Strafferettslige spørsmål ved alvorlige smittsomme sykdommer.»

– Jeg er fornøyd med at vi nå foreslår et regelverk som tar opp i seg den medisinske utviklingen, sa justis- og beredskapsminister Per-Willy Amundsen (FrP) i en pressemelding.

Forslaget innebærer blant annet en klargjøring av at straffeansvar ikke pådras når forsvarlige smitteverntiltak er iakttatt. Dette omfatter blant annet vellykket medisinsk behandling av hivsmitte. Det er lagt vekt på at kunnskapsgrunnlaget om behandling av hivsmitte har endret seg de siste årene, og at smitterisikoen fra velbehandlede hivpositive personer må anses som minimal.

Regjeringen foreslår også en endring i straffeprosessloven som åpner for at politiet rutinemessig kan undersøke smittestatusen til personer som er mistenkt for voldtekt eller andre alvorlige seksuelle overgrep.

– Forslaget innebærer at vi raskere enn i dag kan få avklart om fornærmede har blitt utsatt for smittefare. Det er viktig for regjeringen å styrke fornærmedes stilling i straffesaker, og denne endringen vil bidra til det, sa Amundsen i pressemeldingen.

Strider mot UNAIDS’ anbefalinger

Brukerorganisasjonen Nye Pluss – Hivpositives landsforening er ikke så begeistret. Forslagene innebærer etter Nye Pluss sitt syn en rekke ting som vil forverre den juridiske situasjonen for de som lever med hiv.

– Det som er positivt med proposisjonen, er at det foreslås at man ikke kan straffeforfølge personer som bare har vært uaktsomme, og at det skal nå kreves grov uaktsomhet for å kunne straffeforfølges, sier Kim Fangen, daglig leder i Nye Pluss.

Nye Pluss mener likevel at grensegangen fortsatt er uklar.

– Det er fortsatt ikke slik at faktisk smitteoverføring vil kreves for at man skal kunne straffes. Følgelig vil bestemmelsen fortsatt stride mot UNAIDS’ anbefalinger, som statuerer at straff bare kan brukes der det er snakk om at en person enten er klar over at hen har hiv, eller med viten og vilje går inn for å smitte en annen og smitte faktisk overføres.

Lite praktisk

Proposisjonen går inn for at personer på vellykket behandling skal fritas fra straff. Det er et forslag Nye Pluss applauderer.

– Forslaget innebærer dog at man bare kan fritas fra straff om man er på vellykket behandling og har vært med sin partner til forutgående smittevernveiledning hos helsepersonell, samt fått samtykke fra partneren etter dette. Denne ordningen gjelder i dag bare for personer som lever i ekteskap eller ekteskapslignende forhold. Departementet ønsker dermed å utvide personkretsen som vil omfattes til at den i prinsippet vil gjelde alle, sier Fangen til Blikk Nett.

Nye Pluss mener ordningen er lite praktisk.

– Vi kan vanskelig se for oss at man vil ta med seg en man har datet i to uker til fastlegen for å få et slikt samtykke. Det blir fort mest aktuelt for de som har vært sammen såpass lenge at man uansett vil dekkes av dagens ordlyd om ekteskapslignende forhold. Uansett betyr dette at man tvinger frem en informasjonsplikt overfor seksualpartnere for personer som uansett ikke er smittefarlige. Personer som er på vellykket behandling vil ikke være i stand til å overføre smitte til andre, sier Fangen og viser til uttalelser fra professor Jens Lundgren ved Rigshospitalet i Danmark.

– Når man samtidig vet hvor lite kunnskap som finnes i samfunnet om hiv, gjør dette at man fort setter seg i en veldig sårbar situasjon overfor de man vil ha sex med, uten at man selv utgjør noen fare for den andre.

Økt strafferamme

Justisdepartementets proposisjon ønsker i tillegg å heve strafferammen for grov uaktsomhet fra 3 til 6 år gjennom en ny bestemmelse i loven.

– Dette er svært alvorlig fordi det sender et signal om alvorlighetsgraden av disse handlingene og vil kunne gjøre det ytterligere stigmatiserende å leve med hiv, påpeker Kim Fangen.

– Vi vet at de fleste smitteoverføringer skjer der personen som har viruset ikke selv vet at hen er smittet. Disse straffebestemmelsene vil forsette å ramme personer som i sin uvitenhet har utsatt andre for smittefare og personer som i realiteten ikke kan smitte noen, men som fordi de ikke har vært åpne om status og gjennomført smitteveiledning vil kunne straffeforfølges likevel. Dette tror vi vil medføre at færre vil være åpne om hivstatus og at personer som lever med hiv vil føle seg ytterligere stigmatisert, sier Kim Fangen til Blikk Nett.

– Vi ser dermed ingen grunn til å juble over dette og vil fortsette kampen for å avkriminalisere hiv fullstendig.

NZ: The prosecution of people living with HIV for HIV non-disclosure is at odds with medical advances

Living with HIV is no death sentence

Jane Bruning was 33 when she was told she would die.

The Auckland woman was living in Tanzania when her former partner died suddenly, almost immediately after being told he was HIV positive.

Subsequent tests revealed Bruning, mother to a young son, also had HIV.

It was the 1980s, and the news wasn’t good.

“In those days it just wasn’t considered something heterosexual people got,” says Bruning

“It was a shock…In Tanzania there was no information about HIV. They only had one national radio station, and one newspaper newspaper and they were both in Swahili. There was very little information — HIV was perceived as a gay man’s thing that happened in San Francisco.

“It was very, very scary because there was absolutely no infrastructure or support. I was told I had three years to live and to sleep well, eat well, and don’t have sex.”

Bruning said the ensuing period was “surreal”.

Jane Bruning, national coordinator for Positive Women, says New Zealand is at a crossroads when it comes to how we approach HIV.

She relocated to New Zealand so her family could take care of her son when she was gone.

For years she waited to die.

Then, antiretroviral​ treatment drastically changed the lives of people living with HIV for the better.

With daily medication Bruning realised she would live to meet her grandchildren after all.

Nonetheless, everything was different.

“I don’t know that it’s been a normal life and I’m not sure I would say it’s been 100 per cent healthy because of the side effects from the medication. I knew I wasn’t going to die, but I wasn’t quite sure how to live.”

Bruning, now 59, is one of a small percentage of heterosexual women in New Zealand living with HIV.

It hasn’t been an easy road.

From a medical perspective she is healthy albeit some side effects from her daily medication including peripheral neuropathy, lipoatrophy and lipodystrophy, however, life hasn’t been the same since.

She hasn’t had a partner in 20 years, which is a personal choice. “I thought I was coming home to die so I didn’t see any point in getting into a relationship”.

As the national coordinator of Positive Women, a support agency for women living with HIV and their families, she has come across cases of people being treated like lepers despite medication reducing their risk of transmission.

Earlier this month prosecutors at the Auckland District Court accused Mikio Filitonga of burying his head in the sand when it came to his own HIV diagnosis.

He was found guilty of causing grievous bodily harm to his former partner by infecting him with HIV, and of committing a criminal nuisance by having unprotected sex with him knowing he had HIV and not disclosing it.

Evidence heard at trial established Filitonga was evasive with medical authorities, shunned treatment, and didn’t tell his partner of his diagnosis.

He is one of around a dozen people who have been charged with offences relating to the infliction of HIV since Kenyan musician Peter Mwai became the first person to be prosecuted in 1994.

Unlike some countries or US states where law has been specially crafted for the offence, prosecutors in New Zealand utilise existing legislation to prosecute those whose recklessness leads to injury.

But given people living with HIV can have long, healthy lives—can injury be proven?

Filitonga’s defence lawyer Ross Burns applied to have the charges formally dismissed by the Judge, arguing that the definition of grievous bodily harm hadn’t been met because the complainant was taking medication that made him asymptomatic—technically injury free.

Judge Mary-Beth Sharp rejected the application, saying HIV was an “indisputably serious” illness.

“It is incurable, chronic, and can cause death. With respect, that says it all,” she says.

After the trial the New Zealand Aids Foundation criticised the prosecution, saying court action should only be taken where malicious intent to infect others is established.

The Sunday Star-Times asked: Should people still be prosecuted for inflicting a manageable illness when many others, such as measles, can cause the same damage but aren’t pursued through the courts.

“I do think HIV is a big deal. I wouldn’t want anyone to contract it. I wouldn’t wish it on anybody,” says Bruning.

“In saying that, with the medication making viral loads undetectable, I think we’re coming to a real crossroads. Do you need to wear condoms? Do you need to disclose your status? Clinically, there is no reason why someone should have to wear a condom or disclose. Morally, you have a whole different story.”

Long time infectious diseases physician Dr Graham Mills says it’s an “interesting paradox”, and its silly to compare HIV to measles or other highly infectious diseases that don’t become the subject of criminal prosecutions.

Society’s continued efforts to reduce transmission rates, including the prosecution of reckless persons who pass it on to others, are at odds with the fact medical advances can render HIV virtually undetectable, he says.

Mills works with a 190 HIV patients under the Waikato District Health Board umbrella and gave expert evidence in the Filitonga trial.

He wouldn’t comment on the case but admitted that he became fascinated with specialising in infectious diseases during his time as a medical student at Otago University when a mysterious illness known only as GRID (gay related immuno deficiency which later became known as HIV) became known in the United States.

Since then he has seen patients die, but many also live normal lives.

“Ask yourself, why do I want to reduce HIV? One, because it forces people to be on medication and treatment for the rest of their life.

“Two, it’s expensive. It costs about $10,000 a year for pharmaceutical and out patient costs. Most people don’t pay that much in tax per year.

“Three, it’s an ongoing epidemic, and there are people that lose in any epidemic. The people that lose out are the people that have barriers to health care.

“We’re not criminalising HIV. We never have. We have existing laws to hold people to account because someone has complained, because they believe they have come to serious harm, and therefore we’re giving them the framework with which to lay a complaint.”

Auckland University law professor Julia Tolmie says case law evolved at a time when HIV was “an inevitable death sentence”.

“That has certainly shifted now. Nonetheless the illness would still fall within the definition of grievous bodily harm, which just means ‘really seriously hurt’ or ‘really serious bodily injury’. Something can be ‘bodily injury’ even if treatment is available to cure or manage it,” she says.

The “real issue” for the courts is whether a person’s HIV positive status has been disclosed to consenting partners.

“I think there is an argument that you could apply the same legal principles to, for example, herpes, which is arguably grievous bodily harm, but may not be considered to be dangerous to life.

“I do not know about the infection process for measles but I imagine one of the difficult issues there would be establishing that a person purposefully risked infecting others—people may well be contagious before they know that they have the illness.

“Of course, there is also the need to have a complainant before criminal charges will be laid. People may well not think of informing the police where someone has deliberately risked infecting them with measles or other illnesses.”

Susan – not her real name – disagrees. Her former partner Darryl Kilpatrick was jailed briefly after he had unprotected sex with her without disclosing his HIV status.

She underwent years of testing before receiving confirmation she hadn’t been infected, but she developed post traumatic stress disorder (PTSD), and attempted suicide.

Susan firmly believes people who inflict HIV on others should be charged with a sexual offence, describing her own experience as akin to being raped.

“The effects are identical to rape and sexual violation. The breach of trust, the health issues—it’s an absolute threat to life and future sexual relationships”.

“It’s been a long, lonely journey and I have to say it’s never ending. It’s been very hard,”  says Susan.

She said people “minimised and rationalised” her situation because she hadn’t been infected, and she became frustrated with the lack of support.

“I rang the Wellington sex abuse helpline and the woman on the phone said to me, ‘I don’t know how to help you’. I just screamed at her saying, ‘can’t you see I’ve been sexually violated?'”

Susan later successfully pursued ACC through the High Court in order to get payments for her PTSD, after the agency initially said it didn’t recognise her injury.

The NZAF said prosecutions had the “significant potential” to undermine previous successes in breaking down stigma and discrimination, and reducing HIV incidence rates.

Director Jason Myers said it weakened public health messages of shared responsibility for sexual health and promoted the perception that they are “potential criminals or a threat to innocent’ people”.

“For these reasons, the application of criminal law to the transmission of HIV should be kept for those very few cases in which a person who knows their HIV status has not disclosed this to a sexual partner and acted with the express intent to transmit the virus. Invoking criminal laws in cases of adult private consensual sexual activity is disproportionate and counterproductive to enhancing public health,” said Myers.

According to Bruning there is a strong difference between keeping personal information secret knowing it won’t affect anyone else, and being reckless or deliberate.

“To me, burying your head in the sand is not is not useful, although I understand how stigma can affect people to an extent they are in denial, but that’s very different to someone who injects their blood (in 2009 an HIV positive man deliberately injected his sleeping partner with his blood to deliberately infect her so they could have sex) into someone else,” said Bruning.

Published in Stuff on April 2, 2017