Today, the Global Commission on HIV and the Law finally issued its long-awaited report, 'HIV and the Law: Risks, Rights and Health.' It was well worth the wait.
unjust, morally harmful, and virtually impossible to enforce with any
semblance of fairness, such laws impose regimes of surveillance and
punishment on sexually active people living with HIV, not only in their
intimate relations and reproductive and maternal lives, but also in
their attempts to earn a living."
That's how the
Chapter 2 of the report, focusing on the criminalization of HIV
non-disclosure, potential exposure and non-intentional transmission
begins. The rest of the chapter pulls no punches either.
course, the Global Commmission, and the report itself, cover much more
than HIV criminalization, and it pulls no punches recommending repeal of
punitive laws impacting consensual same-sex sex, sex work, drug use and
patent laws affecting access to HIV treatment. However, since this
blog - and the focus of my work - is specifically about HIV
criminalization I'm only going to focus on the six pages in the report (and five pages of references) that specifically addresses this issue.
Five recommendations on HIV criminalization: click to see a larger image
To cut to the chase, the report recommends the following:
To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:
Countries must not enact laws that explicitly criminalize HIV
transmission, HIV exposure or failure to disclose HIV status. Where such
laws exist, they are counterproductive and must be repealed. The
provisions of model codes that have been advanced to support the
enactment of such laws should be withdrawn and amended to conform to
2.2. Law enforcement authorities must not
prosecute people in cases of HIV non-disclosure or exposure where no
intentional or malicious HIV transmission has been proven to take place.
Invoking criminal laws in cases of adult private consensual sexual
activity is disproportionate and counterproductive to enhancing public
2.3. Countries must amend or repeal any law that
explicitly or effectively criminalizes vertical transmission of HIV.
While the process of review and repeal is under way, governments must
place moratoria on enforcement of any such laws.
may legitimately prosecute HIV transmission that was both actual and
intentional, using general criminal law, but such prosecutions should be
pursued with care and require a high standard of evidence and proof.
The convictions of those who have been successfully prosecuted for HIV
exposure, non-disclosure and transmission must be reviewed. Such
convictions must be set aside or the accused immediately released from
prison with pardons or similar actions to ensure that these charges do
not remain on criminal or sex offender records.
The first four points are consistent with the 2008 UNAIDS/UNDP Policy Brief recommendations but go further in terms of tone. For example, using "must" rather than "should".
Point 2.3 on vertical transmission really needs no further explanation and should be implemented immediately.
what did the Commission mean by some of the recommendations, which,
when you read them from the point of view of a legislator, or someone
who can affect policy in the criminal justice system, might not be quite
as clear as they could be?
And what about point 2.5
recommending that anyone imprisoned for HIV non-disclosure, potential
exposure or non-intentional transmission have their case reviewed?
Although it doesn't spell out the criteria for review, they should be
consistent with the International Guidelines on HIV and Human Rights
published by UNAIDS and the Office of the United Nations
High Commissioner for Human Rights (OHCHR). Since 1998 they have
recommended that in order for someone to be convicted, "the elements of
intent, causality and consent [must be] clearly and legally established
to support a guilty verdict...." If we now consider that the Commission
recommends that only intentional and malicious transmission should be a
crime, if the above
criteria have not been met (and in most cases they have not), the Global
Commission recommends immediate release
from prison, a pardon and removal of criminal records (and in the US
and Canada, removal from the sex offender registry).
I asked Professor Matthew Weait, who served as a member of the Technical Advisory Group for the Commission (the TAG),
with particular responsibility for HIV criminalization about how we
should interpret recommendations 2.1, 2.2 and 2.4 in the real world.
The excellent working paper that he prepared for the Commission, The Criminalisation of HIV Exposure and Transmission: A Global Review is also now available to download. A second paper, Criminalisation and the Moral Responsibility for Sexual Transmission of HIV by Matthew and his fellow TAG member, Professor Scott Burris is also now available.
In 2.1 Does the Commission only recommend repealing laws that
explicitly criminalise non-disclosure, exposure or transmission? What,
for example, does that mean for Canada, which uses general laws to
It's a good
question! Before I answer it, can I emphasise that what I say here
should in no way should be seen as reflecting the views or
interpretation either of other TAG members, the Commissioners, or the
UNDP Secretariat that provided logistical and other support. They are
personal views. So - with that in mind - I think it's important to read
this Recommendation in the context of the Report as a whole. What is
abundantly clear is that the Commission believes that only the actual
and deliberate transmission of HIV may legitimately be criminalized, and
all the Recommendations need to be read in that light. This means, in
my view, that countries which criminalize HIV under their general laws
are also being addressed here. The reason is that in many such
countries it is only HIV transmission, exposure and non-disclosure which
is prosecuted in the criminal courts under general provisions which
could also be used in the context of other diseases. The fact that
other diseases are not, or extremely rarely so, means that HIV is - to
my mind - explicitly criminalized. Just because HIV is criminalized
under a general law doesn't detract from the fact that such
criminalization is explicit in practice. You'll have to follow this up
with the Commission though!
Q: In 2.2 Does the
Commission mean that law enforcement authorities can prosecute for HIV
exposure and non-disclosure where there is proof of intentional or malicious transmission?
don't think so, no. The "must not" construction of the Recommendation
does not imply the opposite, especially where to read it this way would
be against the entire tenor of the Report. It is very important, in my
view, that law enforcement authorities do not take this as a "green
light" - not only because it would lead to over-criminalization (belt
and braces) - but it would serve no purpose.
2.4 Does the Commission suggest that prosecutions can still take place
that aren't malicious? How do you prosecute "with care"?
Recommendation is in permissive language, similar to that used in the
UNAIDS 2008 Policy Guidance, and does not - I think this is important -
mandate criminalisation as such. It seems to me to be intended to
provide states with a "let out" clause, reflecting the views of many in
the wider HIV policy community, and is politically pragmatic and
realistic. Some might think it is a unfortunate that this is in a list
of Recommendations, but I think I understand why it has been. It might
have been better to phrase the Recommendation in the form, "If countries
wish to criminalize HIV, they should only do so in cases of actual and
intentional transmission", but I don't think we should get too hung up
on the exact language here. As with the other Recommendations, it has to
be read in the light of everything else in the Report, where it is
clear that Commission is arguing for the most restrictive approach
possible. It will also, by the way, be important to see whether the
Report itself addresses in more detail what is meant by intentional and
malicious. Different jurisdictions interpret these terms is in a variety
of ways - some equating them with knowledge of status, some with
knowledge of the risk of transmission, and some with deliberate or
purposive intent (or a combination of all these). The fact that the
Commission uses the term "malicious" in Recommendation 2.2 suggests that
it has in mind deliberate and purposive intention
for question of pursuing prosecutions 'with care', it is clear that the
Commission has affirmed what has been emphasised in a number of recent
policy documents, including a recent initiative of UNAIDS.
The highest (I would personally have preferred that, rather than
"high") is necessary when dealing with liability based on expert
evidence (as transmission cases typically are, at least where the
scientific analysis facilities are available).
|Catherine Hanssens highlights the problem with US HIV disclosure laws|
morning, the Global Commission held a press conference that featured
several of the Commissioners: US Congresswoman Barbara Lee; Canada's
Stephen Lewis (Co-Director and Co-Founder of AIDS-Free World); and His
Excellency Mr. Festus Gontebanye Mogae, former President of Botswana.
members of civil society also participated: Nevena Ciric, More than
Help, AIDS +, Serbia; Maurice Tomlinson, AIDS-Free World, Jamaica and
Nick Rhoades, Positive Justice Project, The Center for HIV Law and
Policy, United States.
Nick Rhoades spoke with clarity
and power about the lessons learned from his own terrible experience.
HIV criminalization wastes money, harms prevention and
human rights, he concluded. Return sanity, science and justice to HIV laws.
I was convicted in 2008 under Iowa's law titled "criminal transmission of HIV"
although HIV was not actually transmitted. This involved a one-time,
consensual sexual encounter with another adult. My viral load was
undetectable, I used a condom - and again, I did not transmit
HIV. However, none of these facts mattered in the eyes of the law. The
judge imposed the maximum sentence of 25 years in prison and the
requirement to register as a sex offender for the rest of my life.
After sentencing, the judge was subject to a significant amount of
pressure from advocates in the U.S. and even Europe - requesting my
sentence be reconsidered. After being incarcerated for over a year, he
released me on five years probation, but I am of course, still a sex
offender. [Nick is now appealing his conviction.]
my course through the correctional system, I transferred facilities
four times. Each time I was transferred, I would be either without
medications or missing certain medications for a period of days. And
when I was released, I had lost my place on the AIDS Drug Assistance
Program, so I was put on a wait-list. The correctional system offered no
assistance in finding a social worker or medication assistance once I
was released from prison.
The personal toll this has
taken on me and my family and friends cannot be measured. This has
caused great mental anguish, financial burdens and major
professional barriers for me, now that I am a sex offender. I have been
virtually unemployable. I am fortunate enough now to be employed from
home by The Center for HIV Law & Policy, but most aren't so lucky. To this day, I deal with terrible depression. It's not easy.
What's more, the price to enforce these archaic laws is considerable. The approximate cost to tax-payers to incarcerate just one
individual in Iowa - factoring in the cost of medications and routine
medical care is approximately sixty-five to seventy thousand dollars
annually. This cost is borne by tax-payers and doesn't include the lost
income and contribution to society that incarceration causes. Then
consider the price to supervise people convicted under these laws while
on probation or parole - often being forced to add in the costs of
monitoring offenders on the sex offender registry - and the public is
paying an incredible amount of money for enforcing laws that, more often than not, are punishing people for not
transmitting HIV. In many cases, such as mine, taxpayers are paying
for the enforcement of laws that punish people with HIV who actually
follow the primary prevention messages of public health counselors: stay
in treatment, keep your viral load as close to undetectable as
possible, use condoms - and otherwise, keep sex safe[r].
laws enhance stigma that cripples people living with HIV/AIDS from
accessing services. They make disclosure issues much more difficult due
to ramifications one may face with a mere accusation. I also believe
stigma, made thicker by these laws, is keeping people from getting
Furthermore, I have been a member of the Iowa
HIV Community Planning group - chaired by the Iowa Department of Public
Health - since 2009. I see all the data. This year, the Iowa
Department of Public Health's prevention-based budget faced a 25%
decrease which will eventually grow to 55% over the next five years.
Dollars marked to treat people in care are next for slashing. Those in
care and with undetectable viral loads are up to 96% less likely to
transmit the virus, yet we are cutting funding away from proven HIV
prevention programs while increasing costly prosecution and imprisonment
of people like me living with HIV. When one considers that there is no evidence that these laws have any
impact on people's sexual behaviors, it is clearly not an effective use
of our resources while infringing on individuals' human rights and
working in conflict with public health goals.
Criminal laws and policies that target people based on their HIV status must be repealed. Please support Congressperson Barbara Lee's "Repeal HIV Discrimination Act" now, and engage with those who are promoting the movement to return sanity, science and justice to the law's treatment of HIV.
Nick's powerful testminony, much of the rest of the Global Commission
press conference mostly focused on HIV criminalization in the US and
Canada - as it should since the vast majority of prosecutions take place
in these two countries, a fact highlighted by Stephen Lewis and echoed
by Nick Rhoades.
|I was very honoured to be quoted in the report.|
I asked Rep. Barbara Lee how it
is posssible to change these bad laws when it appears that they have
popular support. "Modernising these laws won't be easy," she said. "But I
have to tell you that the public isn't really aware of these laws. Once
you explain it to them, they're shocked. What we have to do is mount
public education campaigns about these laws. At state level, many state
legislators don't know these laws are on the books, and they can change
them if there is the political will. So we need public and political
education and civil society support for a political movement to hold
politicians accountable. But... yes we can!"
other countries using general criminal laws to prosecute non-disclosure,
potential exposure and transmission, in the next few months UNAIDS will
be releasing a policy consideration document that will help countries
understand exactly how to limit their application through a better
understanding of HIV science as well as public health and human rights
There's going to be a lot more happening
around the Global Commission's Report and all of the amazing evidence
the Commission accrued during its two year existence. I
recommend spending time on the Global Commission website
where you will now find a treasure trove of documents to help further
anti-criminalization advocacy and eventually lead to HIV justice for
On the Web