Social Science Update: Review of HIV criminalisation research in the US, 1990-2014

An article reviewing 15 years of U.S.-based social science research on HIV criminalisation was published in the September 2016 issue of AIDS and Behavior. The research team, led by Dini Harsono of Yale University’s Center for Interdisciplinary Research on AIDS (CIRA), Criminalization of HIV Exposure Work Group, described results from twenty-five research studies conducted in the US from 1990-2014. Studies were conducted with women and men living with HIV, gay men and other men who have sex with men (HIV-positive and –negative), public health workers, and medical providers.

Across the studies, the authors found that, while awareness of HIV exposure laws was generally low, attitudes were generally supportive of criminalisation.[1] The studies showed little to no relationship between the existence of laws and decisions to disclose one’s positive HIV status or to test for HIV. The clearest relationships between stigma and HIV non-disclosure laws could be found from the Sero Project study findings that people living with HIV expect to be treated with bias in the courts simply because of their HIV status. The authors call for future studies to pay more attention to health outcomes, rather than attitudes, and to more closely research prosecution and enforcement practices.

For a global overview of HIV criminalisation research, see O’Byrne et al. (2013). “HIV criminal prosecutions and public health: an examination of the empirical research.”

Details

Criminalization of HIV Exposure: A Review of Empirical Studies in the United States, by Dini Harsono, Carol L. Galletly, Elaine O’Keefe, Zita Lazzarini. AIDS Behavior. DOI 10.1007/s10461-016-1540-5. Published online: 7 Sept 2016.

[1] Although the Sero Project study (2012) was included in the research review, one key set of findings was not discussed. In the Sero Project study, support for criminalisation dramatically declined when survey respondents were provided additional response options (beyond only the choice to support criminalization or not) in survey questions.

Criminalization of HIV Exposure: A Review of Empirical Studies in the United States

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

Russian crime gangs find gays easy targets for blackmail

By VERONIKA SILCHENKO and IRINA TITOVA

Originally published by the Associated Press on Jun. 5 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The economist agreed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What do we mean by ‘HIV criminalisation’?

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

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

What is the impact of HIV criminalisation?

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

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

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

How many countries around the world have HIV criminalisation laws?

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

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

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

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

How many countries have prosecuted people living with HIV?

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

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

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

Where have prosecutions recently taken place?

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

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

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

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

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

HIV criminalisation in sub-Sarahan Africa of increasing concern

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

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

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

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

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

Where has advocacy improved legal environments?

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

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

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

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

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

Using science as an advocacy tool

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

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

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

More work required

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

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

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

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

A note about the limitations of the data

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

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

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

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

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

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

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

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

Originally published in Specialty Pharmacy Times

Study abstract available here

US: American Psychological Association adopts resolution opposing HIV criminalisation

The American Psychological Association (APA) has adopted an evidence-informed resolution on HIV criminalisation in the United States.

It was developed with feedback from the APA Committee on Legal Issues and the HIV Medicine Association – who themselves issued a Policy Statement on HIV Criminalization in 2015 – along with the Sero Project and The Center for HIV Law and Policy.

According to the background document:

We believe an APA resolution will 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 patients, clients, and the general public’s health.

The resolution, adopted by the Council of Representatives in February 2016 and published on March 15th, can be read in full on the APA website.

It includes the following key messages:

THEREFORE be it resolved that APA opposes HIV criminalization and recommends the repeal or reform of these laws to eliminate HIV-specific criminal penalties with the exceptions of 1) a person with known HIV committing a sex crime where there is risk of transmission, and 2) a person with known HIV who has the intent to transmit the virus and is engaged in a behavior with a high risk of transmission;

BE IT FURTHER RESOLVED that laws that are not in alignment with the current scientific evidence on HIV transmission should be repealed;

BE IT FURTHER RESOLVED that laws that criminalize behaviors posing low or negligible risk for HIV transmission should be repealed or reformed and better aligned with contemporary scientific evidence regarding HIV transmission probabilities for specific behaviors and the efficacy of risk-reduction activities (e.g., consistent condom use);

BE IT FURTHER RESOLVED that laws that target PLHIV and engender harsher sentencing should be repealed;

BE IT FURTHER RESOLVED that laws that increase likelihood of incarceration for PLHIV should be repealed;

BE IT FURTHER RESOLVED that laws that undermine national HIV prevention efforts should be repealed;

BE IT FURTHER RESOLVED that criminalization laws that increase the risk of and intimate partner violence to, and control of women and other vulnerable people with HIV should be repealed;

BE IT FURTHER RESOLVED that laws that specifically target and criminalize PLHIV should be repealed;

BE IT FURTHER RESOLVED that laws that discriminate and stigmatize against PLHIV should be repealed;

BE IT FURTHER RESOLVED that psychologists practicing in states with HIV-specific criminalization laws are encouraged to better understand the impact of these laws on their patients who have HIV or who may be at elevated risk for HIV infection.

Canada: New study finds majority of women living with HIV who also inject drugs face legal obligation to disclose HIV status to sexual partners

A new study presented to the International AIDS Society conference in Vancouver, Canada last week (IAS 2015) found that 44 per cent of participants within a research cohort of people who use injection drugs living with HIV in Vancouver would be legally obligated to disclose their HIV status to their sexual partners. Within the study, 65 per cent of male participants compared with only 45 percent of female participants satisfied the Supreme Court of Canada’s legal test for HIV non-disclosure, based on the October 2012 ruling in R v. Mabior.

Under current case law, people living with HIV must disclose their HIV status to a partner before sexual activity unless both a condom is used and a low HIV viral load is present.

The vast majority (98 per cent) of cohort participants in this study either self-reported always using a condom or achieved a low HIV viral load (<1500 copies/ml), and as such took steps to reduce the risk of HIV transmission to sexual partners. A person living with HIV who is appropriately treated and sustained on effective antiretroviral therapy will have an undetectable viral load, meaning the chance they will spread the virus is extremely low.

“The law as it currently stands places an additional veil of threat over an already vulnerable and criminalized population within one of Canada’s most impoverished communities,” said British Columbia Centre for Excellence in HIV/AIDS Director, and IAS 2015 conference co-chair, Dr. Julio Montaner. “Current non-HIV non-disclosure laws in Canada are not aligned with the state of the scientific evidence, and as a result create further stigma and fear around HIV.”

“The criminalization of HIV non-disclosure can affect people living with HIV in Canada in many ways,” said Valerie Nicholson, an Aboriginal woman living with HIV and the Chair of the Board of Directors at Positive Living BC. “People may face criminal charges for not disclosing, which can lead to lengthy and damaging criminal prosecutions – based on no scientific evidence. In the wider community, the law increases stigma and discrimination, does not account for power or control imbalances in relationships, compromises our ability to lead healthy sex lives and may introduce questions about the limits of confidentiality in the health care setting.”

The poster presentation of the study, “Gender differences in meeting legal obligations to disclose HIV status within a cohort of HIV-positive illicit drug users in Vancouver” is below.

Patterson, Sophie. Gender differences in meeting legal obligations to disclose HIV status within a cohort o…