US: Mark S. King explores why the breakthrough message equating "HIV undetectable to untransmittable" matters

Five Reasons ‘HIV Undetectable’ Must Equal ‘Untransmittable’

December 15, 2016

We are not dirty, we are not a threat, and we are not disease vectors. In fact, we are the solution. People living with HIV who achieve viral suppression, who become undetectable, are the solution to the end of new HIV infections in the United States. … When we look back 20 years from now we’re going to judge ourselves in terms of how well we responded to this opportunity.

Dr. Rich Wolitski, person living with HIV and acting director for the Office for HIV/AIDS and Infectious Disease Policy at the U.S. Department of Health and Human Services

When Dr. Wolitski delivered his speech at the closing plenary of the 2016 United States Conference on AIDS (USCA), he received a standing ovation. He was referring to this year’s newest findings of HPTN 052 and the PARTNER study, which showed that people living with HIV who are undetectable are not transmitting the virus to their negative partners.

How wonderful that something many of us have assumed for years has been proven to be true. So now we can spread the news and encourage people with HIV to seek treatment and stick with it. And hey, there’s nothing like a little intercourse a la natural with your partner to reward yourself for being undetectable, am I right?

Not so fast. There is some strong resistance to a message that equates undetectable to untransmittable, and it’s not coming from where you might think.

Here are five reasons why this breakthrough message matters.

1. The science is solid.

The PARTNER Study has recorded 58,000 acts of penetrative sex without condoms between 1,000 positive/negative couples, in which the HIV positive partner had an undetectable viral load. There were no infections between the couples. Not a single one. The same results were reported in the HPTN 052 study and the empirical evidence to date. As Dr. Wolitiski said in his USCA speech, “this is a game-changing moment in the history of the HIV epidemic.”

Resistance to the conclusion that undetectable people pose no risk of infection has been either a matter of scientific data scrutiny or a fear that people may not actually be undetectable when they think they are. Let’s break that down.

A review of the argument against saying “zero risk” is enough to make you cross-eyed. It is based on the premise that nothing, really, is without risk. Detractors of the non-infectious message will calmly explain the perils of placing any risk at zero and then hypnotize you with statistical origami. Suffice it to say that proving zero risk is statistically impossible. You risked electrocution by turning on your device to read this article.

There will always be somebody who claims a terminally unique HIV infection, even if the precise circumstances of their claim may be murky. Weird things happen. Some folks are convinced that people who drink alcohol sometimes spontaneously combust. But you don’t see warning labels about it slapped on every bottle of Wild Turkey by overzealous worrywarts.

And yes, there is the possibility that someone might develop a viral load if they are not adherent to treatment and then transmit the virus. But the message here is that people who are undetectable cannot transmit HIV. If you stay on treatment and are undetectable you will not transmit HIV. Can we please celebrate this simple fact without remote qualifiers?

It is also important to note that a Canadian consensus statement concluded that any “viral blips” or sexually transmitted infections (STIs) were “not significant” to HIV transmission when someone is undetectable.

2. Major health experts are on board (but not all community leaders).

Public health leaders, from the New York Department of Health to the National Institutes of Health (NIH), have embraced these findings and its meaning to people with HIV, while community advocates and organizations have been reluctant to get on board, citing a theoretical risk of infection. Or maybe they consider changing their fact sheets and web sites an enormous bother.

The Prevention Action Campaign and their seminal message “U=U” (undetectable equals untransmittable) was founded on the energetic efforts of a man named Bruce Richman. He entered the HIV advocacy scene a few years ago, seemingly out of nowhere, carrying aloft the banner of undetectability. Richman gathered signatures of health experts the world over for a consensus statement about the research, while cajoling every U.S. HIV organization in sight to adopt language that removes the stigma of infectiousness from people who are undetectable.

My review of the web sites and statements from major HIV organizations includes no strong language about undetectable people not transmitting HIV. Worse, some exaggerate the risk from those who are undetectable. How could such a new research breakthrough be met with such ignorance and apathy by our own leaders? I will defer shaming anyone by name while they take a little time to update their official language. (Notable exceptions to this sad rule include work going on in the United Kingdom and France that flatly states that undetectable means non-infectious.)

This skepticism from our own community reduces people with HIV, again, to a problem that must be managed. It suggests that those of us who have achieved undetectability don’t have the judgment to keep taking our medications or to see our physician regularly to be sure our treatment plan is still effective. It keeps us in the role of untrustworthy victims unable to make decisions that will keep the rest of you safe from us. What infuriating, stigmatizing nonsense.

3. This is about HIV. Only HIV.

Auxiliary issues often creep into this debate that may be well-meaning but only muddy the waters, such as the fear that promoting the message of non-infectiousness will lead to more sexually transmitted infections (STIs) because of the freedom it allows (see also: critics of PrEP, the birth control pill, and any other vehicle that might lead to unbridled sexual pleasure).

Rates of STIs — which were on the rise before the advent of PrEP or news from the PARTNER Study — are deeply concerning but ultimately tangential. We are in desperate need of comprehensive sexual health programs, to be sure, but in this instance I feel compelled to “kill the alligator closest to the boat.” This is about being HIV undetectable, not syphilis impermeable. Being undetectable will not prevent other infections or address promiscuity or remove stubborn stains.

Advocates are also sensitive to the continued compartmentalization of our community, between those who are positive or not, who is on PrEP or not, and now, between those with HIV who are able to achieve viral suppression and those who cannot, despite their best efforts. I sympathize with this new divide among HIV positive people but believe the greater good — removing shame and stigma from those who are not capable of transmitting — shouldn’t be downplayed. All HIV positive people of good will can and should celebrate this development, regardless of their own viral load.

4. This is a major victory for HIV criminalization reform.

Terribly important work is being done to repeal and reform HIV criminalization laws that prosecute people with HIV for not disclosing their status to a sexual partner. Our lead defense is often that the defendant never posed a risk to their partner in the first place, due to their use of protection or the fact the defendant was undetectable and therefore rendered harmless.

Imagine the glee with which prosecutors might punch holes in this defense, based on statistical mumbo-jumbo saying “zero risk” is impossible and using it to explain to a jury that Joe Positive did, in fact, pose a risk to his sexual partner and should be jailed for it. Put that doubt into the heads of a jury, and another person with HIV gets a 30-year sentence for daring to have sex at all.

5. This profoundly changes how people with HIV view themselves.

Internalizing the fact that I cannot transmit HIV to anyone has had an effect on me that is difficult to describe. I can only liken it to the day the Supreme Court voted for marriage equality. Intellectually, I knew I was a gay man and a worthy human being. But on the day of the court’s decision I walked through the streets of my neighborhood with my head held higher. Something had changed. I felt whole.

In my thirty-five years living with HIV, I have never felt exactly that way. I deserve to. And so do millions of other people with HIV.

Of all the arguments to adopt the message that undetectable people cannot transmit HIV, that enhanced feeling of self-worth may be the most important reason of them all.

 

Australia: Analysis of the limitations of scientific evidence to prove timing and direction of alleged HIV transmission in three criminal trials

This article by Paul Kidd in the March 2016 issue of HIV Australia examines the use of HIV phylogenetic analysis in three Australian criminal trials. It argues that courts in Australia appear to accept forensic evidence uncritically. As the forensic methodology used in phylogenetic analysis is inherently limited, it argues there is risk of miscarriage of justice where this type of evidence forms a substantial part of the prosecution case.

Read the full article at: https://www.afao.org.au/library/hiv-australia/volume-14/vol-14-no-1/phylogenetic-analysis-as-expert-evidence-in-hiv-transmission-prosecutions

Switzerland: Two (alleged) HIV transmission convictions this month despite many positive changes in law

On January 1st 2016, Switzerland’s Epidemics Act 2013 finally came into effect, which

repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).

Despite this, and a 2013 Swiss Federal Supreme Court ruling that HIV transmission may no longer be automatically considered a serious assault under article 122 of the Swiss Criminal Code, and could be prosecuted as a common assault under under article 123, there have been two HIV transmission prosecutions using article 122 in the past two weeks.

Alleged transmission via oral sex with disputed disclosure: Aarau District Court, Aargau

On February 1st, a Liberian man, 48, was convicted of (allegedly) transmitting HIV to his ex partner despite both parties testifying to consistent condom usage during vaginal sex. The complainant, a woman in her 50s, remained with the man four years after her diagnosis, and only made the complaint after he left her and married another woman, with whom he now has three children.

According to a news report in the Aargauer Zeitung, the court appeared to believe that she acquired HIV from the man via oral sex, which both sides testified was the only time they had sex without condoms.  Whilst he testified he had disclosed early in the relationship, she claims he only disclosed following her diagnosis.

He was found guilty under article 122, and was given a year suspended sentence. He was also ordered to pay compensation to the complainant of CHF 30,000 (approx. €27,000).

Alleged transmission via vaginal sex with a very low viral load, without disclosure: Geneva Criminal Court, Geneva.

On February 10th, a Turkish man, 50, was convicted of (allegedly) passing HIV to his ex partner despite having a low viral load.

According to a report on 20 Minutes and further information from another journalist in the courtroom, the court heard that the man was diagnosed with an almost undetectable viral load: his doctor told him he would not need treatment for many years, and that his risk of transmission was 1-in-a-1000.

His doctor told him to inform his partner, but he testified that he did not because he was afraid she would leave him and he did not believe he could infect her.

Although the Swiss Federal Court has previously accepted that a person with an undetectable viral load could not expose someone to HIV,  in this case the man was not on treatment (a key criterion of the Swiss Statement) and it was also alleged that he had infected the complainant.

He was found guilty under article 122, and given two years’ suspended sentence. He was also ordered to pay compensation to the complainant, a woman in her forties, of CHF 40,000 (approx. €36,000).

A second charge under, originally article 231, was not retained because the judge found that the element of malicious intent required since the change of law in January, was absent.

Discussion

Despite significant law reform in Switzerland, potentially unjust prosecutions continue to occur.  However, the penalties are less severe than previously found in a 2009 study of all Swiss prosecutions.

Most prison sentences ranged between 18 months and 4 years, plus a fine of up to CHF 80,000 (c. €53,000) as compensation to the ‘victims’.

However, in neither case was there any mention of the court relying on expert witnesses or scientific evidence – notably the use of phylogenetic analysis to help ascertain if the transmissions were linked or unlinked – which would have been appropriate given the unusual nature of both alleged transmissions.

Switzerland has one of the world’s highest percentages of diagnosed people on treatment with an undetectable viral load, close to the UNAIDS 90-90-90 target of 73% of all people living with HIV virally suppressed by 2020.

This highlights that even at this level of national HIV treatment success, a significant minority of people with HIV will be diagnosed but not uninfectious, especially disenfranchised individuals such as migrants, and therefore vulnerable to prosecution.

It is likely both men’s risk of prosecution was already higher than usual because their partners were (probably) Swiss-born older women who did not consider themselves at risk of HIV.

Both cases therefore highlight that physicians and other health care workers need to ensure that all of their patients fully understand the risks of HIV transmission when not on treatment – even with a low viral load and/or during oral sex – and potential prosecution when disclosure does not happen, or cannot be proven.

US: A panel of health experts blasts HIV criminalisation laws as a failure that keep people from getting tested and ignore the current state of science

A panel of health experts blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.

And the laws – in place in Georgia and states across the South – or prosecuting people for HIV exposure using other criminal statues – which happens in Texas and four other states – also ignore that partners in consensual sex acts share responsibility for their sexual health, according to Scott Schoettes, a senior attorney and HIV Project Director at Lambda Legal.

“The story is about the AIDS monster out there trying to infect everyone and that is not the case,” Schoettes said (top photo). “Sexual health is a shared responsibility. It creates a sense of false security for the person who is negative – ‘There is this law in place and I can sit back and wait for someone to tell me.'”

He said the laws keep people with HIV from getting tested and few, if any, of the laws require prosecutors to show that an HIV-positive person had any intent to infect a sex partner. Nevermind, he adds, that it’s difficult to prove that someone did disclose their HIV status before sex and once convicted, some state laws call for them to be labeled as sex offenders.

“It becomes a he said, he said and the person with HIV, when you get into that courtroom, is naturally at a disadvantage. A lot of people think that when you have HIV, you have done something wrong. We are still fighting that misperception,” Schoettes said. “When you have a jury that is deciding the fate of someone, they are disconnected from the culture of the folks that they may be actually adjudicating.”

And that can mean steep sentences for people convicted under HIV criminalization laws. In July, Michael Johnson – a black, gay, HIV-positive college wrestler in Missouri – was sentenced to 30 years in prison for infecting a sex partner and putting four others at risk, though prosecutors didn’t show in court that Johnson was the man who infected him. In South Carolina, former gay Atlanta man Tyler Orr faces two counts of exposing another person to HIV and up to 20 years in prison – though he says he did disclose his HIV status to his sex partner.

Schoettes’ comments came during a panel discussion during the 2015 National HIV Prevention Conference in downtown Atlanta earlier this month. He was joined by Randy Mayer, chief of the HIV, STD and Hepatitis Bureau of the Iowa Department of Public Health; Tami Haught, an activist who led efforts in Iowa to reform its HIV criminalization law; David Knight, a trial attorney with the Civil Rights Division of the U.S. Department of Justice; and Terrance Moore, deputy executive director with the National Alliance of State & Territorial AIDS Directors.

‘It’s not a slam dunk’

Knight said the HIV criminalization laws don’t reflect the current state of science and risk surrounding HIV and pointed to a document released earlier this year by the Justice Department calling on states to reform their HIV criminalization laws.

“Two things that we really want to think about is that intentional transmission is atypical and uncommon, and HIV stigma hampers prevention,” Knight said.

The Justice Department document calls on states to tighten their HIV criminalization laws to scrap HIV-specific criminal penalties with two exceptions – when an HIV-positive person commits a sex crime where there is risk of transmission and when there is clear evidence that an HIV-positive person intended to infect another person and engaged in risky behaviors to do so.

But changing HIV criminalization laws in the three-dozen states that have them is a tough haul, Mayer (second photo) and Haught said. They built coalitions across groups and enlisted public health experts to help revise the law in Iowa, a measure passed in 1998 that carried harsh penalties and 25-year prison terms that were often doled out to those convicted.

“In my experience, almost everyone got the 25 years even though that was the maximum,” Mayer said. “It’s not a slam dunk. It’s not an easy sell. Many people, even people living with HIV find themselves on both sides of this issue.”

Iowa lawmakers revised the state’s HIV criminalization law in 2014 to treat HIV like other communicable diseases such as hepatitis and tuberculosis. The law also requires that prosecutors prove intent to transmit, Mayer said.

“We had to bring in the different coalitions and bring in partners. Lawmakers don’t care what is fair and what is right. But they will listen to the public health side of the law,” Haught said. “Iowa’s law was significantly modernized and everyone is better for it.”

The panelists argued that rather than criminalizing HIV-positive people, and adding to the stigma they face, they should be pushed to treatment options. The Centers for Disease Control & Prevention has said getting HIV-positive people tested and connected to care and treatment is key to controlling the disease. Undiagnosed HIV infections fuel the HIV epidemic, Eugene McCray, director of CDC’s Division of HIV/AIDS Prevention, said during the Atlanta conference.

“Getting people into care is a better way to reduce transmission than these laws,” Mayer said.

Originally published in Project Q

Prison time for HIV?

Prison time for HIV? It’s possible in Veracruz

El Daily Post, August 6th 2015

New legislation passed by the Veracruz state Congress calls for up to five years in prison for “willfully” infecting another with HIV, which can lead to AIDS. The measure is fraught with legal, medical, public health and human rights problems, but supporters insist it will help protect vulnerable women.

 

The Veracruz state Congress has unanimously approved legislation that calls for prison time for anyone who intentionally infects another person with the HIV virus or other sexually transmitted diseases.

The amendment to the state penal code makes Veracruz the second Mexican state (after Guerrero) to criminalize the sexual transmission of illnesses. Another 11 states have sanctions in the books for infecting others with “venereal diseases,” a term and concept no longer used in the medical community.

But Veracruz has stipulated a more severe punishment than the other states — from six months to five years in prison. Guerrero also has a maximum of five years, but it’s minimum is three months.

The bill was promoted by Dep. Mónica Robles Barajas, a member of the Green Party, which is allied with the ruling Institutional Revolutionary Party. She said the legislation is aimed at protecting women who can be infected by their husbands.

“It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.

The legislation, however, raises serious questions, both legal and medical, as well as concerns about human rights.

The most obvious problem is the notion of “intentional” infection. Robles emphasizes that the bill is based on a “willful” passing of the virus, which she defines as a carrier having sexual relations when he or she is aware of his or her HIV infection.

But the notion of intentionality in such cases is a complicated one for prosecutors, legal experts say. The he-said/she-said factor can be a sticking point, according to Luis González Plascencia, a former head of the Mexico City human rights commission, with the accusation likely to be based on one person’s testimony.

“There could be ways to show through testimony that there was an express intention to infect,” González told Animal Político. “But that’s always going to be circumstantial.”

A likely abuse of the law, he said, is attempted revenge or blackmail. An angry spouse or other partner can, with a simple declaration, create a legal nightmare.

Even if the issue of intentionality can be overcome, the very notion of criminalizing HIV infection is controversial. AIDs and human rights experts are against it.

One of them is Ricardo Hernández Forcada, who directs the HIV-AIDS program at Mexico’s National Human Rights Commission (CNDH). International experience, he says, indicates that punitive policies accomplish little besides government intrusion into private life. (Eastern Europe and Southeast Asia are regions where laws similar to the new one in Veracurz have existed.)

A Veracruz non-governmental organization called the Multisectoral HIV/AIDS Group issued a communiqué in response to the new legislation, declaring, “Scientific evidence shows that legislation and punishment do not prevent new infections, nor do they reduce female vulnerability. Instead, they negatively affect public health as well as human rights.”

González concurred. “The only thing that’s going to happen is that there will be another crime in the penal code that won’t accomplish anything except generate fear,” he said.

The Multisectoral Group also pointed out a disconnect between the law and medical science. It’s  virtually impossible, the group says, to determine with certainty who infected whom with a sexually transmitted disease.

“Phylogenetic analyses alone cannot determine the relationship between two HIV samples,” the group said in its release. “They cannot establish the origin of an infection beyond a reasonable doubt, or how it occurred, or when it occurred.”

Robles, for her part, objects to the notion that the legislation criminalizes HIV carriers, insisting that the target is the intentional infection of another through sex. She emphasized that the aim of the new law is to protect women, who are often in a vulnerable situation.

“It’s directed much more at protecting women than homosexual groups,” she said. “There is a high incidence among women because there is no awareness of the risk they run.”

Opponents, however, see the new law as a step backward for men and women, and for public health in general, insisting that penalization comes at the expense of prevention.

“Knowing that they could be at risk of prosecution, people won’t get tested,” the CNDH’s Hernández Forcada said. “These measures inhibit people’s will to know their diagnosis.”

UNAIDS Reference Group on HIV and Human Rights updates statement on HIV testing to include the “key trend” of “prolific unjust criminal laws and prosecutions”

The UNAIDS Reference Group on HIV and Human Rights has updated its statement on HIV testing  — which continues to emphasise that human rights, including the right to informed consent and confidentiality, not be sacrifced in the pursuit of 90-90-90 treatment targets — in the light of “three key trends that have emerged since the last statement regarding HIV testing was issued by the UNAIDS Reference Group (in 2007).”

One of these is “prolific unjust criminal laws and prosecutions, including the criminalization of HIV non-disclosure, exposure, and transmission.” The other two involve the recognition that HIV treatment is also prevention, and policies that aim to “end the AIDS epidemic as a public health threat by 2030.”

This statement is an important policy document that can be used to argue that public health goals and human rights goals are not mutually exclusive.

The Reference Group was established in 2002 to advise the Joint United Nations Programme on HIV/AIDS (UNAIDS) on all matters relating to HIV and human rights. It is also fully endorsed by by the Global Fund to Fight AIDS, Tuberculosis and Malaria Human Rights Reference Group.

This statement is issued at a time when UNAIDS and the Global Fund are renewing their strategies for 2016–2021 and 2017–2021, respectively.

To support these processes, the Reference Groups offer the following three key messages:

1. There is an ongoing, urgent need to increase access to HIV testing and counselling, as testing rates remain low in many settings. The Reference Groups support such efforts unequivocally and encourage the provision of multiple HIV testing settings and modalities, in particular those that integrate HIV testing with other services.

2. Simply increasing the number of people tested, and/or the number of times people test, is not enough, for many reasons. Much greater efforts need to be devoted to removing barriers to testing or marginalized and criminalized populations, and to link those tested with prevention and treatment services and successfully keep them in treatment.

3. Public health objectives and human rights principles are not mutually exclusive. HIV testing that violates human rights is not the solution. A “fast-track” response to HIV depends on the articulation of testing and counselling models that drastically increase use of HIV testing, prevention, treatment, and support services, and does so in ways that foster human rights protection, reduce stigma and discrimination, and encourage the sustained and supported engagement of those directly affected by HIV.

The section on HIV criminalisation is quoted below.

The criminalization of HIV non-disclosure, exposure, and transmission is not a new phenomenon, but the vigour with which governments have pursued criminal responses to alleged HIV exposures — at the same time as our understanding of HIV prevention and treatment has greatly advanced, and despite evidence that criminalization is not an effective public health response — causes considerable concern to HIV and human right advocates. In the last decade, many countries have enacted HIV-specifc laws that allow for overly broad criminalization of HIV non-disclosure, exposure, and transmission. This impetus seems to be “driven by the wish to respond to concerns about the ongoing rapid spread of HIV in many countries, coupled by what is perceived to be a failure of existing HIV prevention efforts.” In some instances, particularly in Africa, these laws have come about as a response to women being infected with HIV through sexual violence, or by partners who had not disclosed their HIV status.

Emerging evidence confrms the multiple implications of the criminalization of HIV non-disclosure, exposure, and transmission for HIV testing and counselling. For example, HIV criminalization can have the effect of deterring some people from getting tested and finding out their HIV status. The possibility of prosecution, alongside the intense stigma fuelled by criminalization, is good reason for some to withhold information from service providers or to avoid prevention services, HIV testing, and/or treatment. Indeed, in jurisdictions with HIV-specific criminal laws, HIV testing counsellors are often obliged to caution people that getting an HIV test will expose them to criminal liability if they find out they are HIV-positive and continue having sex. They may also be forced to provide evidence of a person’s HIV status in a criminal trial. This creates distrust in relationships between people living with HIV and their health care providers, interfering with the delivery of quality health care and frustrating efforts to encourage people to come forward for testing.

The full statement, with references, can be downloaded here and is embedded below.

HIV TESTING AND COUNSELLING: New technologies, increased urgency, same human rights

US : Mississippi lawmakers pass law mandating HIV testing for anyone arrested for sexual assault

Updated by Paul Boger at Law enforcement officers will soon be able to do mandatory AIDS testing on those arrested for sexual assault. House Bill 2-57 was passed by lawmakers with nearly unanimous support in Mississippi’s House and Senate. The measure gives law enforcement the right to test individuals arrested for sexually assaulting a minor for diseases such as HIV and AIDS.

Under current Mississippi law, testing can only be conducted after a person has been convicted of a crime. Proponents say the new law will help young victims know if they’ve been exposed to a terrible disease. Republican Representative Mark Formby of Picayune helped draft the law. He says the test would become part of the intake process.

“If you’re arrested and you get photographed; it is not any additional evasive behavior,” says Formby. “We are documenting that you were arrested, which means that there was some degree of evidence that implicated you in a crime.”

Despite the measure’s popularity among lawmakers, some groups like the ACLU of Mississippi believe the law is a slippery slope.

Keia Johnson is the organization’s legislative strategist. She says the law amounts to an unreasonable search and seizure.

“We believe that when you mandate that DNA is to be collected for HIV testing purposes or anything like that upon arrest, that you are violating the due process of law,” Johnson says.

According to Representative Formby, both the suspect and the victim will be given the results of the test 24 hours after it was taken. At that time, all other DNA samples would be destroyed.

Malawi: High Court rules that mandatory HIV testing is unconstitutional

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

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

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

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

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

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

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

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

UNAIDS publishes updated, detailed guidance on HIV criminalisation

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

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

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

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

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

The new guidance reiterates the positions previously stated in the 2008 Policy Brief issued by UNAIDS and the United Nations Development Programme  (UNDP) and the recommendations of the Global Commission on HIV and the Law, to limit the application of criminal law to cases of intentional transmission (i.e. where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it) and that general – and not HIV-specific – laws should be used for these extremely rare occasions.

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

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

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

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

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

  • the assessment of the harm caused by HIV

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

  • the assessment of the risk of HIV transmission

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

  • the assessment of the mental culpability of the person accused

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

  • the determination of defences to prosecution or conviction

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

  • the assessment of elements of proof

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

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

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

  • prosecutorial guidelines

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

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

Exposing the 'Office of Medical and Scientific Justice' by Seth Kalichman

I posted earlier that AIDS Denialist and LA Private Investigator Clark Baker is focusing his attention on the US Military justice system. Baker’s storefront business, the Office of Medical and Scientific Justice (OMSJ) is paid by US taxpayers to bring AIDS denialists to the court. How are AIDS Denialists used as experts in legal cases?