HIV criminalisation presentations and posters at AIDS2020

There were a number of presentations, mostly e-posters, at AIDS2020:Virtual that focused on HIV criminalisation. We have compiled them all below given that access was (and remains) limited.

The only oral presentations specifically covering HIV criminalisation were delivered by HIV Justice Network’s Executive Director, Edwin J Bernard, presenting in three pre-recorded video sessions.

Below you will find the presentation ‘Bringing Science to Justice’ for the IAPAC 90-90-90 Targets Update, produced for the session, ‘Creating Enabling Environments for Optimal HIV Responses’. This eleven minute presentation, that also includes a number of video clips, covers the following:

The detrimental implications of HIV criminalisation on human rights and public health
The impact of the ‘Expert consensus statement on the science of HIV in the context of criminal law’
Lessons learned from HIV criminalisation on punitive responses to COVID-19
Conclusion: It is more critical than ever to commit to, and respect, human rights principles; ground public health measures in scientific evidence; and establish partnerships, trust, and co-operation between scientists, law- and policymakers and the most impacted communities.

Update (29 July): During a California HIV/AIDS Policy Research Centers virtual satellite session, Dr. Ayako Miyashita Ochoa of UCLA Luskin School of Public Affairs, Department of Social Welfare, interviewed activist Marco Castro-Bojorquez about the modernisation of California’s HIV-specific criminal law as an example of of evidence-based policymaking.

There were a number of poster presentations that also focused on HIV criminalisation in the following countries/jurisdictions:

PEF 1737 United States
PEF 1738 England & Wales
PEF 1739 Australia
PEF 1740 Niger
PEF 1742 Malawi
PEF 1781 Florida, USA
PEF 1794 Uganda
PEF 1841 Taiwan

The abstracts are below. Click on the title to download the pdf of the poster.

Amy Baugher, Centers for Disease Control and Prevention (PEF 1737) Men who have sex with men living in states with HIV-specific criminalization laws report high community stigma – NHBS, 2017.

BACKGROUND: In 2017, 36 states had laws penalizing persons with HIV (PWH) for sexual or no-risk behavior (e.g., spitting). Research shows these laws do not impact sexual risk behaviors or diagnosis rates. Citizens likely are unaware of these laws; we do not expect direct behavioral effects. However, laws reflect states’ values and may mirror community attitudes towards PWH. Understanding how structural factors relate to stigma is important for stopping HIV stigma.
METHODS: National HIV Behavioral Surveillance used venue-based sampling methods to interview men who have sex with men (MSM) in 23 U.S. cities from June-December 2017. Using Center for HIV Law and Policy reports, we categorized states’ HIV-specific laws as of June 2017. We compared MSM”s perceptions of community attitudes towards PWH between MSM living in states with versus without HIV laws. We obtained adjusted prevalence ratios using log-linked Poisson models assessing the relationship between law and four community stigma attitudes (discrimination, rights, friendship, punishment), which we then compared between black MSM in states with versus without laws.
RESULTS: Two-thirds of MSM lived in states with HIV-specific laws. MSM in states with laws were more likely to report black race (38% versus 15%), poverty (23% versus 12%), or incarceration (25% versus 19%). Multivariable models found laws were related to perceived community beliefs that PWH “got what they deserved” (aPR=1.13, 95% CI: 1.03-1.24), but not other attitudes. Compared to black MSM in states without laws, black MSM in states with laws were more likely to believe persons in their community would discriminate against PWH (64% versus 50%), not support PWH’s rights (25% versus 16%), not be friends with PWH (24% versus 13%), and believe HIV was deserved punishment (32% versus 22%).
CONCLUSIONS: MSM in states with HIV laws were disproportionately from marginalized groups. Laws were related to perceived community attitudes that HIV was deserved punishment; understanding specific stigma attitudes can inform interventions. Although black MSM reported high community stigma overall, stigma was significantly higher for black MSM in states with HIV laws. States may consider repealing or reforming HIV laws and focusing on effective prevention efforts to End the HIV Epidemic.

Deborah Gold, National AIDS Trust (PEF 1738) Improving the application of the law: Updating guidelines for prosecutors in England and Wales regarding sexual transmission of infection.

BACKGROUND: In England and Wales it is possible to be prosecuted for the sexual transmission of infection under the Offences Against the Person Act 1861 or the Criminal Attempts Act 1981. After the first prosecutions in 2003, National AIDS Trust (NAT) successfully advocated for legal guidance for prosecutors and worked with the Crown Prosecution Guidance (CPS) to develop this.
DESCRIPTION: In 2018 NAT requested that the guidance be updated. In January 2019 the CPS shared a draft of their revised guidance with NAT, who then coordinated a joint response from NAT and other key stakeholders. This successfully ensured that the new guidance reflects medical developments such as Undetectable=Untransmittable and clinical guidance. Developments in case law have led the CPS to take the view that HIV/STI status deception may be capable of vitiating consent to sex. NAT is concerned that this could result in people who lie about their HIV status being prosecuted for rape or sexual assault, even with safeguards used and no transmission occurring. NAT prepared a briefing articulating legal, policy and public health arguments against this position, and presented it at a meeting with the CPS. As a result the CPS have added several caveats, but we still believe their position to be unacceptable and discussions are ongoing.
LESSONS LEARNED: The successes we have had in improving the guidance demonstrate the importance of long-standing proactive engagement, relationship-building and collaboration. Collaborating with a range of key stakeholders including clinicians and lawyers enabled NAT to leverage wider authority and expertise. However, the issue of HIV status deception has illustrated the implications for HIV of legal developments in related but not directly transferable areas. Confidence in our understanding of the law and persistence in making our arguments heard has been crucial in ensuring ongoing engagement on this issue.
CONCLUSIONS: The updated guidance will help to ensure that prosecutions for reckless or intentional transmission are conducted in a way that minimises harm to both individuals and the wider community. Regarding the issue of HIV status deception, possible next steps include securing parliamentary engagement, pro bono legal opinions, and further representations from local government and public health bodies.

Alexandra Stratigos, HIV/AIDS Legal Centre (PEF1739) Crime and punishments – deportation proceedings against people convicted of criminal transmission of HIV .

BACKGROUND: A significant portion of people convicted of HIV transmission in Australia are not Australian citizens. Due to not holding citizenship, those convicted of serious criminal offences (which includes facing a prison term of 12 months or more), are at risk of having their visas cancelled and being removed from Australia. The HIV/AIDS Legal Centre (HALC) has represented a number of these clients in both their criminal and subsequent immigration proceedings to assist these clients in preventing their removal from Australia.
DESCRIPTION: Where a person is not an Australian citizen and commits a criminal offence they are at risk of detention and removal from Australia. In two recent case studies of people with HIV convicted of HIV transmission, following the completion of their custodial sentences steps were then taken to cancel their visas and place them into immigration detention. Both clients had their visas cancelled and had to take steps to appeal the decisions. Part of the reason for the cancellation was the perception of ongoing risk to the Australian community. Neither client had been convicted of intentionally transmitting HIV to their sexual partner. HALC continues to represent one of the clients mentioned and the other has now exhausted all appeal options.
LESSONS LEARNED: There are often many and varied reasons for HIV non disclosure and, from HALC”s experiences, following criminal and public health interventions it is unlikely that a person with HIV would continue to place their sexual partners at risk of contracting HIV. Decision makers in migration proceedings appear to be unwilling to accept that a person with HIV would no longer place their sexual partner at risk of HIV transmission as the decision makers note in their decisions that they there remains a risk to the community.
CONCLUSIONS: The outcomes of these cases demonstrates the need for ongoing advocacy and law reform in the removal of offences for HIV non-disclosure, exposure and transmission, except where actual intent can be established to a criminal law standard. The cases also demonstrate the ongoing need for continued robust representation of those, often vulnerable migrants, who are facing visa cancellation.

Kassoumou Ibrahim, Association des Jeunes Juristes du Niger (PEF1740) Decriminalization of HIV transmission: Advocacy experience of the Civil Society Coalition for the decriminalization of HIV in Niger.

BACKGROUND: To effectively fight against HIV, Niger adopted Law No. 2007-08 of April 30, 2007 related on HIV prevention, care and control. This law included problematic provisions, including the criminalization of exposure, HIV transmission, and the non-disclosure of HIV to the sexual partner. Actually, PLWHIV continue to be victims of the application of the provisions criminalizing the transmission of HIV through several criminal prosecution cases in 2017.
DESCRIPTION: In June 2018, 13 civil society organizations created the “National Coalition for the Decriminalization of HIV in Niger”. This one benefited from the technical and financial support of HIV JUSTICE WORLDWIDE. Its advocacy objectives, by 2021, are to : repeal of offenses criminalizing exposure and transmission of HIV ; research and disseminate reliable and convincing data on the impact of HIV criminalization on access to HIV-related services. Since its creation, the Coalition has carried out the following activities: National workshop for consulting civil society stakeholders on the exposure, transmission and non-disclosure of HIV in Niger; The development of the Memorandum of December 20, 2018 entitled ‘exploring ways and means to resolve the problems of legal proceedings against people living with HIV in order to reduce to zero the new infections, deaths and discrimination linked to AIDS; Organization of several advocacy meetings during the ‘zero discrimination’ day (March, 2019) for public decision-makers and partners.
LESSONS LEARNED: Judicial police officers and magistrates have to exercise greater caution when considering a criminal prosecution, and in particular, carefully assess the latest scientific data on the risks of transmission and the consequences of the infection; National AIDS Control Program needs a comprehensive assessment of the application of criminal legislation on the transmission, exposure and non-disclosure of HIV status in order to measure its impact on the effectiveness of national response.
CONCLUSIONS: The criminalization of HIV transmission undermines public health efforts and does not take into account the reality of PLWHIV and especially women who are not always able to disclose their HIV status without fear of reprisals or violence, or to impose the wearing a condom. The threat of possible criminal prosecution only increases their vulnerability.

Laura Ferguson, University of Southern California (PEF1742) Removing legal barriers to accessing HIV services in Malawi: Impact of regional- and national-level interventions.

BACKGROUND: Building on the work of the Global Commission on HIV and the Law, and in order to promote an enabling environment for achieving the 90-90-90 targets, UNDP has supported regional-and national-level work on removing legal barriers to accessing HIV services in sub-Saharan Africa. Covering over 20 countries, this work consists of regional-level capacity building for duty-bearers and rights-holders from the different countries and in-country activities tailored to local realities.
DESCRIPTION: In 2019/20, we evaluated the impacts of this work through a review of project documents and key informant interviews with stakeholders including civil society representatives, government officials, and UNDP staff, and conducted an in-depth case study in Malawi.
LESSONS LEARNED: Participation in regional spaces empowered national-level stakeholders in their country level work. A participatory legal environment assessment (LEA), jointly owned by government and civil society, served as the starting point and the resulting document, providing an overview of the strengths and weaknesses of HIV-related national laws and policies, has served as a cornerstone for subsequent activities. For example, national advocacy efforts informed by the LEA, and participation by the Chair of the Parliamentary Committee on HIV in regional activities, were key to shaping a revised HIV law to better align with international human rights law. The new law has led to the reform of the institutional framework for the national HIV response. Judges participated in regional judges’ fora where they could request information on HIV-related science, discuss lived experiences with key populations’ representatives and hear about how legal issues were being addressed across the region. Lawyers from across the region took part in joint training. After one such training, and with technical support from regional partners to create a strong case, a lawyer chose to appeal the conviction of a woman under Malawi’s law criminalizing HIV transmission. The presiding judge had attended regional judges’ fora and, drawing on a firm understanding of HIV transmission dynamics, overturned the original ruling.
CONCLUSIONS: A mix of regional and national level activities allows for tailoring of activities to national contexts while also providing space for peer networking and support where ‘difficult’ issues might more easily be discussed.

Wyatt Deihl, Rollins College (PEF 1781) Racial and gender disparities in Florida newspaper coverage of HIV related arrests.

BACKGROUND: According to the Centers for Disease Control and Prevention (CDC), as of 2016, 108,003 people live with HIV (PLHIV) in Florida, which also has the highest rates of new HIV diagnoses in the country. Numerous complexities worsen Florida’s HIV risk environment, including sex work, human trafficking, injection drug use, and sex tourism. These topics are often bases for HIV-related arrests that journalists cover. HIV criminalization describes statutes that criminalize otherwise legal conduct or that enhance penalties for illegal conduct based on a person’s positive HIV status.
METHODS: This study employed a systematic review of Florida news articles on HIV-related arrests published between 2009-2019. Through qualitative content analysis, our study analyzed how race, gender, and journalistic tone coalesce in reports of HIV-related arrests.
RESULTS: A 2018 report from the Williams Institute indicated that white Floridian women are primarily arrested for HIV-related crimes. The systematic review found zero news reports on HIV-related arrests of white Floridian women, and only one article identified a female perpetrator whose race was undisclosed. Sixty-four other articles reported solely on the HIV-related arrests of men, predominantly black men. We identified two categories of articles where HIV was either central to the arrest, or the person’s HIV-positive status was reported but exhibited little pertinence to the arrest.
CONCLUSIONS: Journalistic and police reporting behaviors risk inadvertently stigmatizing PLHIV at a time when public awareness of HIV depends on perceptions of HIV. This information will be used to shape equitable local nonprofit campaigns for community prevention, and HIV decriminalization efforts, while also combating the perpetuation of HIV misinformation.

Richard Mayanja, Uganda Martyrs University (PEF1794) Protective shield or punitive sword?: A critique of the Uganda HIV and AIDS control and prevention Act, 2014 from a human rights perspective.

BACKGROUND: The purpose of the research: To assess the compliance of the Uganda HIV and AIDS Control and Prevention Act, 2014 (the Act) with international human rights law standards.
Problem: In 2014, the Government of Uganda enacted a law to control and prevent HIV and AIDS. However, human rights advocates contest that the law contains provisions that don”t comply with international human rights law standards.
METHODS: Study period: August 2014 – August 2015 Study design: Qualitative design. Data collection: The study used a document analysis method. Method of analysis: The study identified international human rights law standards related to HIV and AIDS and used them as benchmarks for the review, analysis and synthesis of the literature.
RESULTS: The study established that: The Act carries provisions that comply with international human rights law standards. These include HIV counselling, testing, and treatment; state responsibility in HIV and AIDS control; the establishment of the HIV and AIDS Trust Fund; HIV-related human biomedical research; and prohibition of discrimination in various settings on grounds of HIV status. The Act also contains provisions that are not compliant with international human rights law standards. These include mandatory HIV testing, disclosure without consent, criminalization of actual and attempted HIV transmission, and criminal penalties for vaguely defined conduct. The Act lacks provisions that would make it more effective in controlling and preventing HIV and AIDS. These include commitments by the state to be accountable for its obligations stated in the Act; definition of what constitutes discrimination in various settings; and addressing challenges such as the causes of discrimination, inadequate professional human resources at health facilities, lack of HIV-friendly services in health facilities, and unregulated informal sector in complying with the law.
CONCLUSIONS: The study identified the compliance and non-compliance of the Act to international human rights law standards. It made recommendations to the Government of Uganda, organisations of people living with HIV and AIDS, organisations that advocate for human rights, and national human rights institutions, on the need to eliminate, revise and add some provisions in the Act to create an enabling legal environment that conforms with international human rights law.

Yi Chi Chiu, Persons with HIV/AIDS Rights Advocacy Association of Taiwan (PEF 1841) Fight against virus or human being? Case study on human rights violation regarding HIV criminalization in Taiwan.

BACKGROUND: Taiwan ranks top amongst the most progressive Asian countries, including being the first to pass marriage equality in Asia. Yet, stigma and discrimination of certain sub-populations, specifically people living with HIV (PLHIV) continue to prevail, as reflected in the Article 21 of HIV special law which overly criminalizes HIV non-disclosure, exposure and transmission.
METHODS: Using qualitative and quantitative approaches, Persons with HIV/AIDS Rights Advocacy Association (PRAA) of Taiwan makes a case on how the current criminal justice system in Taiwan adapt the narrative of ‘HIV as a weapon’ to prevent PLHIV from asserting their rights.
RESULTS: Article 21 states that individuals with knowledge of their HIV-positive status, by concealing the fact, engage in unsafe sex with others or share injection syringes, diluted fluids, and thus infect others, shall be sentenced for 5 to 12 years. Data showed over 30 cases were identified from 2012 to 2019, the majority of prosecutions were associated with sexual activities. However, unsafe sex was often defined exclusively with use of condom, and the court rarely recognized scientific advancements in antiretroviral therapy and suppressed viral load. Cases included: prosecution from ex-partner whom knew defendant’s HIV status before their relationship; state prosecution without plaintiff by turning 14 HIV-positive witnesses into defendants; 13-year incarceration despite medical expert’s testimony on the unlikelihood of HIV transmission. Those who haven’t been prosecuted continued to face both physical and emotional health threats, such as a woman threaten by her admirer to disclose her status if she turns him down. Bias and prejudice, worsen by difficulties in proving self-disclosure or condom use commonly resulted in convictions.
CONCLUSIONS: Article 21 and out-of-date judicial interpretation of HIV transmission risks gravely deprive the rights of PLHIV and further perpetuates stigma against PLHIV and affected communities through special criminal law on HIV. There’s a strong case to be made for abolishing Article 21 under the Constitution of Taiwan and the International Bill of Human Rights. Training and support on HIV advancements shall be given to all members of judicial and criminal law system to further inform any application of criminal law in cases related to HIV.

Canada: Study highlights how the criminal law does not consider the gendered power unbalance of HIV disclosure

Positive sexuality: HIV disclosure, gender, violence and the law—A qualitative study

Abstract

While a growing body of research points to the shortcomings of the criminal law in governing HIV transmission, there is limited understanding of how cis and trans women living with HIV (WLWH) negotiate their sexuality and HIV disclosure in a criminalized environment. Given the ongoing criminalization of HIV non-disclosure and prevalence of gender-based violence, there is a critical need to better understand the dynamics of negotiating sexual relationships and HIV disclosure among WLWH. We conducted 64 qualitative interviews with cis and trans WLWH in Vancouver, Canada between 2015 and 2017. The interviews were conducted by three experienced researchers, including a cis and a trans WLWH using a semi-structured interview guide. Drawing on a feminist analytical framework and concepts of structural violence, the analysis sought to characterize the negotiation of sexual relationships and HIV disclosure among WLWH in a criminalized setting. For many participants their HIV diagnosis initially symbolized the end of their sexuality due to fear of rejection and potential legal consequences. WLWH recounted that disclosing their HIV status shifted the power dynamics in sexual relationships and many feared rejection, violence, and being outed as living with HIV. Participants’ narratives also highlighted that male condom refusal was common and WLWH were not only subjected to the gendered interpersonal violence of male condom refusal but also to the structural violence of legislation that requires condom use but fails to account for the gendered power imbalance that shapes condom negotiation. Despite frequently being represented as a law that ‘protects’ women, our findings indicate that the criminalization of HIV non-disclosure constitutes a form of gendered structural violence that exacerbates risk for interpersonal violence among WLWH. In line with recommendations by, the WHO and UNAIDS these findings demonstrate the negative impacts of regulating HIV prevention through the use of criminal law for WLWH.

Full study is available here

US: Study presented at IAS 2017 analyses HIV convictions under HIV criminalisation laws by race, gender and sexuality

HIV Disclosure Crime Convictions Differ by Race/Gender, Gay/Straight Status in the US

9th IAS Conference on HIV Science (IAS 2017), July 23-26, 2017, Paris

Mark Mascolini

Black women get convicted under US HIV disclosure laws half as often as white women, white men, or black men, according to results of a five-state analysis [1]. Men who have sex with men (MSM) get convicted at a rate about one-seventh that of men who have sex with women (MSW). The overall conviction rate for the five states is 13 per 10,000 HIV diagnoses. Missouri easily leads other analyzed states in conviction rate, with 98 per 10,000 diagnoses.

Thirty-two US states have laws criminalizing failure to disclose HIV status to a sex partner or exposing a partner to HIV without their consent. Previous research showed that black heterosexual men get convicted disproportionately under a Michigan law. To determine whether gender, race, or sexual preference affects conviction rates in five states, Trevor Hoppe of the University of Albany, SUNY, analyzed trends in Florida, Louisiana, Michigan, Missouri, and Tennessee. Gender analyses were possible only in Michigan, Missouri, and Tennessee.

Consulting state law enforcement and legal records and newspaper reports, Hoppe counted 387 HIV disclosure law convictions in the five states between 1992 and 2015, including 206 convictions in the three states with gender data available. The overall conviction rate for the five states came to 13 per 10,000 HIV diagnoses. That rate was by far highest in Missouri (98 per 10,000 diagnoses), followed by Tennessee (36 per 10,000), Michigan (33 per 10,000), Louisiana (21 per 10,000), and Florida (6 per 10,000).

The analysis showed no substantial conviction differences by gender or race. But when Hoppe considered gender and race simultaneously, he found a much lower conviction rate in black women (11 per 10,000 HIV diagnoses) than in black men (25 per 10,000), white men (24 per 10,000), or white women (22 per 10,000).

A gay/straight analysis found a much lower conviction rate in MSM than in MSW (20 versus 146 per 10,000). This difference held true for white MSM versus white MSW (9 versus 108 per 10,000) and black MSM versus black MSW (8 versus 47 per 10,000).

Hope speculated that the lower conviction rate for black women could mean black men are less likely to report HIV nondisclosure to the police because they do not trust the police or do not think it is a legal matter. In the same way, gay men may not report HIV non-disclosure because they distrust police or want to avoid a legal contest. Alternatively, the low conviction rate in gay men may reflect high HIV prevalence in US gay men and a resulting lack of shock at nondisclosure.

These findings presented at IAS 2017 are part of a larger project that will be published in November 2017 in a book by Trevor Hoppe, Punishing Disease.

Reference

1. Hoppe T. Victim impact: analyzing disparities by race, gender, and sexuality under U.S. HIV exposure and disclosure laws. 1992-2015. 9th IAS Conference on HIV Science (IAS 2017), July 23-26, 2017, Paris. Abstract MOPEC0719.

For more information see this link.

US: Advocates launch Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform

Yesterday saw the launch of a Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform, to provide guidance for efforts to reform or “modernize” HIV-specific laws across the United States.

The concern, as highlighted by Charles King, President and Chief Executive Officer, Housing Works, Inc, is that if HIV criminalisation reform focuses soley on changing laws so that those who are virally suppressed are not considered ‘a risk’ that this approach will not address the unjust disproportional impact of the US criminal legal system on people of colour, LGBTI people, sex workers, and the financially disadvantaged.

“Housing Works is a leading proponent of #UequalsU, and we believe public education about this scientific advance will lower stigma and thereby create a positive environment for HIV decriminalization. At the same time, it would be a travesty for #UEqualsU to be used to create a criminal class of people who are not durably virally suppressed. HIV criminalization in any form sets back efforts to end the AIDS epidemic, and is based on prejudice and not science.”

The creators and original endorsers of the Statement are: The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, National LGBTQ Task Force, PFLAG, Treatment Action Group, U=U, and Women with a Vision.

In the preamble, they note that:

discussions among people working on the ground on HIV criminal law reform have reflected a mix of views and some uncertainty about the best way to use these remarkable scientific advances in their advocacy. Some have proposed that advances reflected in the U=U campaign (“Undetectable = Untransmittable”) should be added as a defense in modernized HIV criminal laws. Others worry that putting this kind of language into an actual law will exclude or further disadvantage those who experience severe disparities in access to quality treatment—individuals who do not reach or maintain viral suppression may still face prosecution.

Beginning in March 2017, a small group of organizations and advocates began discussions of how to draft a statement that could clearly and accessibly capture concerns about the use of “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U) in the criminal law reform context.

Over the next several months, the statement was shared with a diverse range of organizations and advocates at both the state and national level. In June 2017—after multiple revisions, reviews, and discussions—the current statement was finalized.

To read and sign on to the Consensus Statement visit: www.hivtaspcrimlaw.org which provides links to a variety of resources that can help support the use of the statement, as well as an FAQ that further explores the issues, such as the many tensions facing advocates working to improve the legal environment for people living with HIV

For example, question 7 asks “isn’t some progress better than no progress at all?

This is a hotly debated issue, and people frequently disagree about it. For example, many people supported a federal law ending discrimination against lesbian and gay people that didn’t include transgender people because they felt it was easier to pass that way, and because some progress was better than none. Unfortunately, it usually takes a long time to change a law to cover the people left behind the first time. And some people think that progress that leaves some people out can be taken as putting a “seal of approval” on treating some people less fairly.

With public health messaging, it is always possible to try new and better campaigns. But when it comes to criminal law reform, change can be slow, and once a law is revised, lawmakers are very unlikely to consider further reforms in the near future. Criminal law reform advocacy focused on U=U might lead to a law that only helps some people—those with access to health care and ART—but provides no real help to those without it. Worst of all, legislators may be happy to claim a victory and not revisit the issue for years, decades, or ever again.

The issue of how best to utilise science in advocacy to combat HIV criminalisation is not unique to the United States, however. Last month, two staff members from the Canadian HIV/AIDS Legal Network published a blog post discussing how the ‘Undetectable = Untransmittable’ campaign might best be understood to impact HIV criminalisation advocacy.

Like the US Statement, they also urged caution in relying solely on science to help resolve the issue.

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.

US: New study shows that laws criminalising HIV exposure do not cut down on HIV transmission

Criminalizing HIV Transmission doesn’t cut down on new diagnoses

Penalizing people who don’t disclose their status is bad policy, a new study finds.

More than 30 years since the first criminal laws were enacted in the United States to try to prevent the spread of the human immunodeficiency virus, a new study suggests that the regulations have failed to slow transmission of the deadly virus.

The laws impose criminal penalties on people who know they have HIV and engage in behaviors such as sexual activity or needle sharing that might transmit the virus to others, without disclosing their infection status.

“There has been much discussion about whether criminal-exposure laws affect HIV-risk behaviors or transmission,” senior author Dr. Jonathan Mermin said in an email. “In this analysis, we found no association between HIV diagnosis rates and laws that criminalize HIV exposure.”

Working with data collected in 33 states from 2001-2010, Mermin and colleagues at the U.S. Centers for Disease Control and Prevention (CDC) in Atlanta tracked diagnoses of HIV, the virus that causes the acquired immunodeficiency syndrome (AIDS). They also analyzed AIDS diagnosis rates in all 50 states from 1994-2010.

By the end of 2010, 30 states had passed criminal-exposure laws. But the new study, published in the journal AIDS, found no association between criminal-exposure laws and HIV or AIDS diagnosis rates.

The researchers did find two factors associated with higher HIV and AIDS diagnosis rates: lack of education and living in urban areas.

Ayako Miyashita, director of the Los Angeles HIV Law and Policy Project at the UCLA School of Law, said the study “underscores the fact that we understand the social and structural drivers of the epidemic, and that criminalization is not a particularly useful tool in addressing HIV transmission.”

“These laws are harmful,” said Miyashita, who was not involved with the study, in an email. “They embody the continued fear and stigma associated with HIV and serve to perpetuate a lack of awareness and understanding about existing biomedical interventions.”

More than 1.2 million people in the U.S. have been diagnosed with HIV, according to the CDC. About a third of them take antiretroviral therapy, which can virtually eliminate the possibility of transmitting the virus to others.

Few HIV criminalization laws consider whether an HIV-positive person took measures to reduce the risk of transmitting the virus, the authors write.

A 2013 report in ProPublica pointed out that people have been prosecuted for nondisclosure of HIV infection even when they were using condoms or taking antiviral drugs that made transmission very unlikely (http://bit.ly/1ZBdlfN).

HIV criminal-exposure laws have engendered debate about their effectiveness since 1986, when states first enacted them, the authors write. The laws were intended to encourage people who tested positive for HIV to disclose the fact to potential sex partners and to discourage behaviors that could expose others.

Some feared the laws could have the reverse effect and increase transmission by discouraging testing; if people don’t know they have the virus, they can’t be prosecuted under these laws.

Since 2010, an estimated 40,000 people a year in the U.S. have been diagnosed with HIV.

HIV disproportionately infects blacks, African-Americans, gay Hispanics and Hispanics who inject drugs, previous studies have shown. The new analysis too found that minority populations had higher HIV and AIDS diagnosis rates.

Amira Hasenbush, who has studied HIV criminalization laws in California, said in an email that her research has shown that the laws disproportionately target women and people of color. Hasenbush, a fellow at The Williams Institute at the UCLA School of Law, was not involved with the new study.

“Enforcement data show that HIV criminalization is yet another example of the criminalization of the poor, criminalization of people of color and criminalization of otherwise marginalized populations,” Miyashita said. “We know HIV impacts these communities greatly, and it’s time we realize criminalization is not the solution to addressing the epidemic.”

Miyashita called for review, if not repeal, of all HIV criminalization laws.

“Criminalization is not the solution to this problem,” she said. “These data prove that.”

Published in the Huffpost on May 1, 2017

US: American Pyschological Association's entire March newsletter explores why HIV criminalisation "can no longer be ignored."

APA’s commitment to decriminalizing HIV

This issue explores criminalization of HIV exposure and transmission, which can no longer be ignored.

By Maggie Chartier, PsyD, and Tiffany Chenneville, PhD

In 2016, the APA joined the ranks of medical and professional organizations opposing HIV criminalization laws (Positive Justice Project Consensus Statement on the Criminalization of HIV in the U.S., n.d.). Since 1986, these laws have criminalized nondisclosure of HIV and engagement in “risk” behaviors (sexual activity, needle sharing, and in some instances spitting and biting) for those who are aware of their HIV status (Lehman, Carr, Nichol, Ruisanchez, Knight, Langford, et al., 2014). Between 1986-2011, 67 HIV-specific criminal laws were enacted in 32 states and two U.S. territories (Lehman, 2014), many or most of which do not consider the level of risk and/or intentionality of the act.

Since the beginning of the AIDS epidemic, hundreds of people living with HIV have been arrested for behaviors posing little, if any, risk of HIV transmission (CDC, 2015). It is estimated that 20-25 percent of prosecuted cases related to HIV exposure/transmission have involved spitting, biting or external exposure to bodily fluids (e.g., throwing bodily fluids) which pose negligible transmission risk (CDC, 2015; Patel, Borkowf, Brooks, Lasry, Lanksy & Mermin, 2014; Pretty, Anderson & Sweet, 2009).

Many HIV-specific criminalization laws were passed before research showed that:

Consistent condom use significantly reduced the spread of HIV (Pinkerton & Abramson, 1997).
Adherence to antiretroviral therapy results in undetectable viral loads which dramatically reduce HIV transmission (Dieffenbach & Fauci, 2009 [PDF, 119KB]).
Increased efficacy of post-exposure prophylaxis and pre-exposure prophylaxis and are efficacious in preventng HIV (Celum & Baeten, 2012; van der Straten, Van Damme, Hbere & Bangsberg, 2012; Young, Arens, Kennedy, Laurie & Rutherford, 2007).

People diagnosed with HIV in states with HIV-specific criminal laws must disclose their HIV serostatus to sex partners and injection needle sharing partners and refrain from various sexual behaviors, regardless of actions taken to minimize HIV risk transmission (e.g., consistent condom use, using clean needles, consistent adherence to combination antiretroviral therapy [ART]). In the rare instances in which intentional transmission of HIV is determined, states may use general criminal laws or communicable disease laws to prosecute persons accused of intentionally trying to transmit HIV instead of HIV-specific criminal laws.

Not only do most HIV criminalization laws ignore the level of risk or intentionality of the action, they also do not reflect the current, and considerable, evidence base on HIV transmission (CDC, 2015), and in many instances, they counteract public health efforts to decrease HIV transmission by increasing stigma and discrimination (Valdiserri, 2002). As a result, in 2014, the Civil Rights Division of the Department of Justice issued a “Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors (PDF, 117KB).”

This newsletter will present a human face to HIV criminalization laws and discuss the public health implications and the role that psychological research and practice can play in helping to address the individual and social impact of these laws. By emphasizing this issue, APA strongly encourage states with HIV criminalization laws to repeal such laws and provide psychologists practicing in relevant states with guidance on the impact that HIV-specific laws may have on their clients and the general public’s health.

For more information on APA’s resolution, visit the Background Information on the Resolution Opposing HIV Criminalization webpage.

Ethiopia: New report on HIV criminalisation law with a focus on Ethiopia concludes that the use of criminal law to address HIV is anappropriate

Abstract

States ever since the outbreak of HIV/AIDS have been using different methods in order to combat the pandemic if possible and to reduce vulnerability. In spite of this, HIV/AIDS continues to be prevalent especially in a less developed countries to the extent that it to be hurdle for development. Criminalization of HIV/AIDS patients is one of the mechanisms that are used in the fight against the deadly disease. However, employing criminalization as prevention and vulnerability reduction strategy poses a question and stimulates a debate. Hence, the main thrust of this article is to identify this challenge and to assess whether criminalization of HIV/AIDS patients reduce vulnerability to HIV/AIDS. This being the aim it will also go on to analyze the role of criminal law in a public health issue. In doing so, the article will discuss experience of countries in criminalization of HIV/AIDS patients along side with international frameworks. At a glance, criminal law through a vehicle of punishment seems to play a role in reducing vulnerability to HIV/AIDS but, the writer based on the analyses of relevant literature and experiences of countries, argues that the use of criminal law to address HIV is inappropriate except in rare cases where a person acts with conscious intent to transmit HIV and does so, and this is because of the high degree of proof required in criminal case and the difficulty of using criminal law in HIV related issue due to the nature of the disease and the absence of technology used for the required proof in the criminal law, i.e. beyond reasonable doubt.

Ekubu, Y. (2016) Reducing Vulnerabilities to HIV: Does the Criminalization of HIVAIDS Patients Contribute?. Beijing Law Review, 7, 292-313. doi: 10.4236/blr.2016.74027.

The report can be downloaded here

Social Science Update: Where criminalisation of sex work intersects with HIV criminalisation

In this article, authors Sienna Baskin, Aziza Ahmed, and Anna Forbes examine the interlocking webs of anti-prostitution laws and HIV criminalisation. Throughout the piece, the authors demonstrate critical research ethics by taking, as their starting point, the lives, freedom, and dignity of sex workers living with HIV.

Baskin et al. describe the ways in which, for sex workers, criminalisation is about so much more than the simple existence of laws. Instead, it is the particular policing and prosecutorial practices in a jurisdiction, based on the laws in place, that shape the lives of sex workers.

Similar to HIV-specific criminal laws, laws criminalising sex work are generally broadly written and arbitrarily enforced, enabling systemic discrimination and bias to turn into prosecutions of people of color and poor people.

The authors detail the consequences of arrest and prosecution that are frequently ignored in discussions of the criminal laws, including violence at the hands of police and fellow inmates, costly fees, possible loss of custody of one’s children, loss of employment and housing, and even loss of the right to sue police for violence that the police enact against sex workers in custody.

When HIV ‘exposure’ is also a crime in a state, then the legal penalties for sex work become even more harmful. If a sex worker is living with HIV, then she or he more often faces a felony rather than misdemeanor charge.

Using public health law mapping, the authors examine the US states that have HIV-specific criminal laws, laws criminalising sex work while living with HIV, and court-imposed mandatory HIV testing for people accused or convicted of sex work.

Baskin et al. find tremendous variety in the legislation from differences in when and how mandatory testing is conducted, to whom HIV test results are revealed, to how the results are used in court.

Of the approximately 32 U.S. states that criminalise HIV ‘exposure’, 14 have specific penalties for HIV-positive sex workers. Eleven states require mandatory HIV testing of sex workers and have enhanced sex work penalties for those living with HIV. Further, those prosecuted for sex work while living with HIV can be prosecuted under general (non HIV-specific) laws in any state.

To be prosecuted in eight states, sexual contact need never occur. People need only to be considered to be “loitering” or to make an offer for sexual services. In ten states, laws mandate testing of those prosecuted for sex work and provide enhanced penalties for those who engage in sex work who are living with HIV. In these states, any arrest after the first arrest (and related mandatory testing) leads to an almost automatic conviction. The HIV testing results become part of the person’s court files.

Noting that, 30 years into the HIV epidemic, there is no evidence that criminal law approaches have any positive effect on HIV prevention, the authors contend that criminalising sex work serves only to harm and discriminate against vulnerable populations and to perpetuate the HIV epidemic.

Details

Criminal Laws on Sex Work and HIV Transmission: Mapping the Laws, Considering the Consequences, by Sienna Baskin, Aziza Ahmed, and Anna Forbes (link to pdf download)

Denver Law Review, Volume 93:2, 355-388, Published: 2016