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The new HIV Justice Network websiteToday marks an important step forward in global advocacy towards a fairer, just, rational, proportionate and limited use of laws and prosecutions for HIV non-disclosure, potential or perceived exposure and transmission.

The new HIV Justice Network website is intended to be a global information and advocacy hub for individuals and organisations working to end the inappropriate use of the criminal law to regulate and punish people living with HIV.  Here you will find the latest news and cases, searchable by date, country, and case type, plus all kinds of advocacy resources (including video). The information on the website is also classified by 25 topics, under six headings: Advocacy; Alternatives; Impact; Law Enforcement; Laws and Policies; and Science.

Hopefully this will make it easier to find the information you need for your work, whether it be research into the impacts of HIV criminalisation; advocacy to prevent, reform, repeal or modernise existing HIV-specific criminal statutes or to limit the use of the law through prosecutorial and police guidance; or in promoting alternatives such as a supportive legal and policy environment via a human rights framework; restorative justice via a criminal justice framework; or Positive Health, Dignity and Prevention via a public health framework.

At the same time, we will also be launching the HIV Justice newsletter. As well as including the latest international news and analysis relating to cases, laws, policy and advocacy, it is an opportunity to promote the work of advocates and researchers, such as highlighting upcoming events and new resources. If you have already signed up for it via the Homepage, or supported the Oslo Declaration on HIV Criminalisation, you are already subscribed. If not, you can sign-up here.

The new HIV Justice Network website incorporates all the posts from my blog, Criminal HIV Transmission, which I began in 2007. Little did I know at the time that it would become an important global resource, filling a much-needed gap by capturing what is happening in real time.  It was only when I attended AIDS 2008 in Mexico City, and discovered how many people knew of me and my work, that I realised how useful a resource it had become for advocates, researchers, lawyers and others from all over the world.

Knowing that the blog served as an international information and advocacy hub placed enormous pressure on my time and personal resources. Until the beginning of 2012, the blog and its associated advocacy work received no funding  - save the few wonderful individuals who donated via Paypal and a small grant from IPPF (thank you!).  So I'm very grateful to The Monument Trust for its generous support which has allowed me to sustain, develop and expand the blog into the HIV Justice Network. I'd also like to thank Kieran McCann and Thomas Paterson from NAM, who designed and developed the site, as well as NAM's Executive Director, Caspar Thompson, for his support and guidance.

This past year hasn't only been about developing the new website and newsletter, however. In February, the HIV Justice Network co-organised the civil society caucus meeting that created the Oslo Declaration on HIV Criminalisation. The Oslo Declaration, hosted on the HIV Justice Network website, has become a potent global advocacy tool. And with more than 1600 supporters from more than 110 countries around the world, it has helped to galvanise a global movement advocating against the inappropriate use of the criminal law to regulate and punish people living with HIV.

In July, the HIV Justice Network was very active prior to AIDS 2012 in Washington DC. We held an HIV criminalisation caucus meeting just before the main conference, attended by 36 smart and experienced advocates from 16 countries; co-ordinated a seminar at the MSMGF pre-meeting; and attended both the Positive Justice Project convening and LIVING 2012.

During the conference itself, we presented data in several sessions and satellites, co-organised a press conference, and hosted a panel featuring three courageous individuals who had previously been involved in criminal cases and who are now passionate advocates against the use the inappropriate use of the criminal law to regulate and punish people living with HIV.  You can watch most of these sessions in the Video section of the new website.

Our biggest project to date was working with our video advocacy consultant, Nick Feustel, to produce the 30 minute advocacy and educational video, Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance, which had its premiere at AIDS 2012.

The video demystifies the process of how civil society worked with the Crown Prosecution Service of England & Wales to create the world's first policy and guidance for prosecuting the reckless or intentional transmission of sexual infection. It explains how the guidance was developed, what challenges the key stakeholders faced and overcame, and what benefits have resulted - fewer miscarriages of justice and a better understanding of HIV throughout the entire criminal justice system.

As well as thanking the three interviewees - Lisa Power, Policy Director, Terrence Higgins Trust; Yusef Azad, Director of Policy and Campaigns, NAT; and Arwel Jones, Head of the Law & Procedure Unit, Crown Prosecution Service Strategy & Policy Directorate - we'd also like to gratefully acknowledge the financial contribution of UNAIDS.

Doing HIV Justice had its European debut at the one-day seminar on HIV Criminalisation that the HIV Justice Network co-ordinated on behalf of Deutsche AIDS-Hilfe, EATG, IPPF and the HIV in Europe initiative. The meeting was an opportunity to build on the momentum of advocacy from AIDS 2012 and create a more cohesive pan-European (and Central Asian) movement against laws, policies and practices that inappropriately criminalise people living with HIV.

As the HIV Justice Network moves forward we hope to continue to inform, support and connect individuals and organisations - activists, networks of people living with HIV, lawyers, researchers, clinicians, civil society organisations, and multilateral and UN agencies - in their work to end inappropriate prosecutions of people living with HIV.

Please let us know via the Contact Us form what you like (or don't like) about the new site; how you use it in your work; and what we can do improve. And, of course, if are working to end inappropriate laws and prosecutions and have news, information or resources to share, we'd also like to hear from you.

Here's to a whole new chapter in the global movement towards a more tolerant and supportive environment for people living with HIV, so that we can live long, healthy, empowered, dignified lives - surely a better and more effective way to prevent new infections than a punitive, disabling environment inherent in a criminal justice system approach.

In solidarity,

Edwin J Bernard

Co-ordinator, HIV Justice Network

PS You can 'like' us on Facebook and follow us on Twitter, too!

Edwin on: On the Web

The Supreme Court of Canada ruled on Friday October 5th that individuals who know they are HIV-positive are liable to criminal prosecution for aggravated sexual assault - which comes with a maximum sentence of life in prison and sex offender status - if they do not disclose this fact prior to sex that may risk a "realistic possibility of transmission of HIV".

Download the Supreme Court decision here.

There's been a lot of confusion about whether this ruling, which created the illusion of being fair, rational, just and based on the latest science, was a step in the right direction. Believe me, it wasn't.

First of all, I have to correct a lot of the media reporting about this decision, which framed it in a 'glass half full' kind of way.  Indeed, POZ's own news story, with the headline Canadian Supreme Court Rules HIV Disclosure Not Always Required, was based on a report from, which seemed to suggest that the previous legal situation had required blanket disclosure.

The fact is that before October 5th 2012 there was no blanket requirement to disclose prior to all and any kind of sex, as is the case, for example, with many of the HIV-specific criminal statutes in the United States.

What had been law until that date - and which the ruling reaffirmed - was based on a 1998 Supreme Court ruling (R v Cuerrier), which established that a person who knows they are living with HIV only has a duty to disclose their HIV-positive status if they are engaging in sex that poses a "significant risk" of "serious bodily harm".  This law not only applied to the risk of HIV transmission, but to the risk of other serious sexually transmitted infections, although it was used almost exclusively for HIV.

The confusion over what had previously been law was probably created by the fact that there had been a lot of confusion over the "significant risk" test. 

Chief Justice Beverley McLachlin, writing the unanimous (9-0) decision for the court, appreciated that the 1998 Cuerrier decision was not explicit enough regarding what constitutes a "significant risk" of HIV transmission and acknowledged that this has led to inconsistent and overly broad interpretations by Canada's police and lower courts.

Although the 1998 decision had suggested that the "careful use of a condom" may lower the risk so that it was no longer "significant", this was not binding. In recent years, courts have convicted HIV-positive individuals for having sex with a condom and/or oral sex alone while others have been acquitted for unprotected anal sex.

The confusion may also have been further exacerbated by the fact that the Canadian Government - represented by the prosecution services of the provinces of Manitoba and Quebec - argued before the Supreme Court that there should, in fact, be a blanket law requiring people with HIV to disclose prior to sex regardless of the risk.

But here's why the decision is problematic: there is now a duty for an HIV-positive individual to disclose their HIV status to their sexual partner prior to unspecificed sexual activities, so that fully informed consent can be given, unless both a condom is used and the person with HIV also has a "low" viral load.

This is a retrograde step for both public health and human rights. The ruling undermines safer sex messaging by stating that condoms alone (or, in the brave new world where treatment's additional benefit for prevention is being used to roll out 'test and treat' programs, low or undetectable viral load alone) do not prevent a "realistic possibility" of HIV transmission.

In fact, it creates a different standard of 'safer sex' for people who know their HIV status compared to those are undiagnosed (and who, in fact, drive HIV epidemics), or who are HIV-negative.

Instead, it says that disclosure alone is enough to negate criminal liability (notwithstanding difficulties of proving that this occurred) despite disclosure alone being an unreliable HIV prevention tool.

In terms of human rights, UNAIDS and the Office of the United Nations High Commissioner for Human Rights (OHCHR) have recommended since 1998 that HIV-related prosecutions should reflect general criminal justice principles: 'Clearly and legally establish[ed]' elements of culpability, including foreseeability, intent, causality and consent."

As far as I can see, the this ruling has not clearly established any of these four elements.

One of the most common arguments for HIV-specific criminal statutes (as opposed to using general laws, as is the case in Canada) is that they clearly set out what is and what is not against the law, so that a person with HIV can foresee when they might be 'criminals'. The Supreme Court recognised that simplifying the law so that everyone with HIV had a blanket duty to disclose would allow for this kind of foreeability, but decided against this, because, "not every deception that leads to sexual intercourse should be criminalized, while still according consent meaningful scope."

However, their solution was to create a bright line which will now be known as the "realistic possibility" test. In setting the new precedent, the court opined that "condom use is not fail-safe" and referred to a 2002 Cochrane systematic review of condom effectiveness in reducing heterosexual HIV transmission which concluded that consistent use of condoms results in an 80% reduction in HIV incidence.

In addition, despite also noting the results of the HPTN 052 study, which found that treatment of the HIV-positive individual results in an 96% reduction in HIV incidence amongst heterosexual couples of different HIV status, they went for a 'belt and suspenders' approach.

"However, on the evidence before us, the ultimate percentage risk of transmission resulting from the combined effect of condom use and low viral load is clearly extremely low - so low that the risk is reduced to a speculative possibility rather than a realistic possibility," wrote Chief Justice Beverley McLachlin for the court.

The court did not set an actual level for an acceptably low viral load, but offered a description, based on the evidence of the Mabior case. "When a patient undergoes antiretroviral treatment, the viral load shrinks rapidly to less than 1,500 copies per millilitre (low viral load), and can even be brought down to less than 50 copies per millilitre (undetectable viral load) over a longer period of time. This appears to be scientifically accepted at this point, on the evidence in this case."

Since Mr Mabior only had insertive vaginal sex, the court didn't even examine the relative risks of the types of sex (oral, vaginal, anal) or the position of the person with HIV (insertive, receptive), This leaves uncertainty (and lack of foreseeability) for other kinds of cases. For example what of the HIV-positive woman (or gay man) who is the receptive partner in vaginal (or anal) sex and whose partner does not use condoms? A 2010 case in Vancouver found that this did not meet the "significant risk" test, but if this went to court again such women and men would now be 'criminals' even if they had a low or undetectable viral load.

What about oral sex, broken condoms, other STDs, vertical transmission

The court was silent on these important issues.

But even looking at the facts of the Mabior case, the risk of HIV transmission with a high viral load and no condoms via insertive vaginal sex is estimated by the CDC to be just 5 per 10,000 exposures (i.e. 1-in-2000).  Reduce that already low risk by either condom use or a low viral load and surely there is still no "realistic possibility of HIV transmission."

The use of science to limit the law here is an illusion.

The accused person will now have to prove that they used a condom and had a low viral load at the time of alleged otherwise consensual act.  That won't be easy.

All that the prosecution will have to prove is that the person with HIV didn't disclose that they knew they were HIV-positive (regardless of whether this was active deception or simply no verbal discussion of HIV risk). 

Such non-disclosure continues to be treated by Canadian law as fraud that invalidates consent to sex. It conflates non-disclosure with the "intent to apply force" if it can also be shown that the sexual partner would not have consented had they known the accused was HIV positive. This is considered aggravated sexual assault, which carries a maximum sentence of life imprisonment and registration as a sex offender.

What will happen now?

Legal scholar, Isabel Grant, whose recent article exploring the issues faced by the Supreme Court was extensively referred to in the R v Mabior decision told Postmedia news that she expected to see many more criminal cases than the current tally of almost 150 since 1989 under the new interpretation of the law. "They pretty much went as far as they could have gone in the direction of criminalization," she noted.

A 2011 study found that the lack of clarity over the duty to disclose was resulting in "anxiety [and] confusion" for people living with HIV and led to "contradictory HIV counselling advice" by healthcare workers.  This is likely to continue.

And a more recent study came to similar conclusions, and also noted that HIV transmission is likely to increase if reliance on disclosure becomes Canada's new HIV prevention standard.

Edwin on: On the Web

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.

"Fundamentally 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.

Of 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:

2.1. 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 these recommendations.

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 health.

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.

2.4. Countries 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.

2.5. 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. 

But 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 foreseeability, 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.

Q: 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 prosecute non-disclosure?

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?

I 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.  

Q: In 2.4 Does the Commission suggest that prosecutions can still take place that aren't malicious?  How do you prosecute "with care"?

This 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

As 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

This 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.

Three 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.]

During 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].

These 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 tested.

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.

Following 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!"

As for 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 principles. 

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 all.

Edwin on: On the Web

In Sweden, the Communicable Diseases Act requires people with diagnosed HIV to disclose in any situation where someone might be placed at risk and to also practise safer sex (which, in Sweden, means using condoms - the impact of treatment on viral load and infectiousness is not yet considered to be part of the safer sex armamentarium.)

But in Sweden you're damned if you do (disclose) and damned if you don't because Sweden is one of several countries in western Europe - including Austria, Finland, Norway, and Switzerland - where people with HIV can be (and are) prosecuted for having consensual unprotected sex even when there was prior disclosure of HIV-positive status and agreement of the risk by the HIV-negative partner. Sweden uses the general criminal law for these prosecutions of which there have been at least 40 - out of an HIV population of around 5,000.

And if you think the Swedes aren't being overly harsh, then watch the harrowing documentary, 'How Could She?' about a young woman, Lillemore, who was in such denial that she did not tell anyone that she was HIV-positive (including the doctors who delivered her two children). Even though both children were born HIV-free, and no-one was harmed by her non-disclosure, following the break-up of her marriage, her ex-husband reported her to the authorities and she was sentenced to 2 1/2 years in prison.

Fortunately, most of these countries with overly-draconian policies towards people with HIV are well advanced in the process of examining (and hopefully, changing for the better) such laws and policies.

Norway has set up a special committee to examine whether its current law should be rewritten or abolished: its recommendations are due in May.

Switzerland is currently revising its Law on Epidemics, to be enacted later this year, and, according to my sources, the latest version appears to be mostly consistent with UNAIDS' recommendations.

In 2010, Austria's Ministry of Justice conceded that an undetectable viral load is considered a valid defence, even if they say individual judges can ignore their recommendation, although much more could still be done to remove the legal onus for HIV prevention on people with HIV.

And Finland has established an expert group on HIV/AIDS within the Finnish National Institute for Health and Welfare with the aim to ensure legislative reform, and address laws and polices that reinforce stigma and discrimination.

But Sweden - which has the most HIV-related prosecutions per capita of people with HIV in Europe (and probably the world) and that's not including the 100+ more people with HIV who have been forcibly detained and isolated under the Communicable Diseases Act - is lagging behind, and continues to enforce its 'human rights-unfriendly' policies.

Fortunately, civil society is fighting back. In 2010, HIV-Sweden, RFSU (the Swedish Association for Sexuality Education) and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) began a three-year campaign to raise awareness and advocate against Sweden's over-punitive HIV-related policies.

A recent conference held just before World AIDS Day put together by the campaign and attended by police, prosecutors and politicians highlighted the many human rights concerns over Sweden's current laws and policies. I was honoured to be one of only two non-Swedes to speak at the meeting (which was held mainly in Swedish - so a big thank you to Elizabeth, my personal "whisper" translator) - you can see the agenda and download a copy of my presentation here.

Download Google translated version of full article here

The meeting and associated campaign received a lot of press coverage, including the front page of the biggest circulation morning paper in Sweden on World AIDS Day.

At the meeting, HIV Sweden, RFSL and RFSU launched an important new manifesto, HIV Crime and Punishment that clearly explains what the problems are for people with HIV (and public health) in Sweden and asks for three actions from the Swedish Government:

  • A review of Swedish law, including the Communicable Disease Act as well as the application of the criminal law to HIV non-disclosure, exposure and transmission.
  • An endorsement by Sweden of the 2008 UNAIDS Policy Brief on the criminalisation of HIV transmission, which says that criminal prosecutions should be limited to unusually egregious cases where someone acted with malicious intent to transmit HIV, and succeeded in doing so.
  • A renewed, clear focus of Sweden's National HIV Policy on a human rights-based approach to HIV prevention, care, support and treatment, and sex education. 

Let's hope that Sweden's policymakers take heed. After all, how can a country which supports UNAIDS' global efforts, and is perceived to be a global champion for human rights treat people with HIV in its own country as second class citizens? (You could, of course, ask the same of the United States and Canada  - and numerous other wealthy, countries - as well.)

Don't think Sweden is that bad?  Check out the 2005 case of Enhorn v  Sweden at the European Court of Human Rights which found that Sweden had unlawfully isolated a man with HIV for a total of seven years, a violation of Article 5 ยง 1 of the Convention's "right to liberty and security of person".

Edwin on: On the Web

Understanding the unintended impacts of the criminalization of HIV exposure or transmission - way beyond the relatively few individuals who are accused, arrested and/or prosecuted - can play a crucial part in advocating against such laws and prosecutions.

Over the next few months, there are going to be multiple opportunities to highlight issues such as:

  • Creating fear and confusion about relying on disclosure to prevent HIV risk, and when disclosure is legally necessary
  • Making it harder for people living with HIV who are having problems maintaining safer sex to talk with healthcare workers due to fear of prosecution
  • Increasing HIV-related stigma
  • Creating a false sense that HIV is someone else's problem, rather than a shared responsibility
  • Providing an additional disincentive for people to learn their HIV status

These opportunities will arise via the Global Commission on HIV and Law's High Income Country Dialogue that will take place in Oakland, California on 16-17 September (click here for more details);  the UNAIDS Programme Coordinating Board (PCB) meeting focusing on HIV and Enabling Legal Environments that will take place in Geneva, Switzerland on 13-15 December; and through an ongoing project by IPPF, Behind Bars, that highlights a wide range of personal testimonies about the impact of HIV criminalization.

I'm hoping that POZ readers will help me collate personal testimonies about the impact of HIV criminalization on their own lives. You don't have to be an HIV professional or have been involved in a case to have been impacted (although such testimonies are very welcome).

As the example I'm about to show you illustrates, you can simply live in fear of the law because you are living with HIV.

If you have a personal story to share, you can either paste it into the comment box below.  Your stories will be highlighted in IPPF's Behind Bars collection, on POZ's HIV criminalization page, and my blog and may also end up in testimony to the Global Commission on HIV and the Law and the UNAIDS PCB meeting.  Submissions can be anonymous (but I will require some evidence of authenticity), and if you do use your real name, please indicate whether it can be used in full or not.

Here's Jonas's story (not his real name) from Norway.  The use of Paragraph 155 (known as the 'HIV Paragraph') is currently being evaluated by a Government committee's thorough investigation into the appropriateness of HIV criminalisation. The committee should produce its recommendations by Spring 2012, although there are no guarantees that a version of this law will not remain on the books and continue to be enforced when their deliberations end.

Paragraph 155 of the Norwegian Penal Code, an infectious-disease law enacted in 1902, essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status and consents, and irregardless of viral load or a desire by a couple to conceive.  Both 'willful' and 'negligent' exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for 'willful' exposure or transmission and three years for 'negligent' exposure or transmission.

Paragraph 155 - and a story from a partially unlived life

In my teens I turned off my sexuality. Even as my hormones were reaching boiling point, I managed to shut down. I felt that my desires were wrong, and I am a strong-minded person. In my twenties, I told my family and friends that I was gay. I began to have sex carefully, but I was never in any relationship.

When I reached 30, and after some therapy, I began to feel ready to try enter into a relationship. In January 2000 I took the HIV test, together with my best friend, since it was the "millennium change." My test turned out to be HIV-positive, and the shock was devastating. I was very far from having a wild sex life - it was just very bad luck. Like many other HIV-positive persons, I later came to understand what my doctor told me following diagnosis:  "You are going to be fine. HIV is no longer a death sentence." The words were a great comfort. I still had so much unlived life in me.

Life with HIV was difficult at first, but slowly I came to accept the new situation, the same way I had earlier come to accept my sexual orientation. But because of Article 155 must I, as a virile, and still fairly young man, now live like a monk - an asexual monk? What kind of life will that be? Would I be able to live like that?

Last time I had sex was some months ago. I was dating a nice guy I was attracted to, and we were at his place. Sweet music was playing. I lied and said I did not have the energy to have sex after my gym work out, but that I would like a massage instead. I got the massage. A very nice massage. The atmosphere got hot. I felt both excited and uneasy. He said he wanted to have sex with me. I said no. We continued with massage and kissing for a while. "Just a little?" He asked again. I gave in. We began to have sex. We got a condom and lubricant ready. Then the thought hit me hard, like a powerful wave. What if the condom bursts? It could happen, even if it is very unlikely. "Exposure to potential risk," says the HIV Paragraph.

Although I hadn't told him myself, I knew that he knew a guy who knows that I am HIV-positive, someone I met at a seminar for HIV-positive people some years before. But I did not know this guy well, and I share my diagnosis only with people I have known for a long time, and trust, like friends and family. What if he tells his friend about this incident? Perhaps his friend would guess who I am and say, was his name xxxx? 'Ah yes, he has HIV, like me!' What if he then calls the police? Reports me? What if the police comes to my home? Brings me in for interrogation, and puts me in a prison cell? What about my important meeting next week? Mum will be crushed if I go to jail. For having sex.

I pulled away. I used the oldest excuse in the book: headache. And low blood sugar. I put on my clothes and left. I never called him again. I have thought about him several times.

I will not be able to live my life without sex. I'm not a big fan of the word injustice. Nature is not fair. But Paragraph 155 criminalises me for wanting to live a full life - and that includes a sex life. Me - who has studied law just because everyone said I was always so fair and wise.

I feel like a victim, even though I often criticise the role of the victim. A victim of this discriminatory law that criminalises the sexuality of people affected by HIV. A victim of prejudice related to HIV, which few seem to bother to care about. Norwegian society likes its scapegoats. I want to remove the criminalisation of sexuality in Norway. I want a good life. In Norway. In 2011. And in the rest of the years I will live in this beautiful country.

Edwin on: On the Web

Johnson Aziga, 55, an African migrant living with HIV, is a now officially a "dangerous offender" according to Canadian criminal law.

Mr Aziga is already considered a "murderer" two times over. He was convicted in 2009 of two counts of first-degree murder, ten counts of aggravated sexual assault and one count of attempted aggravated sexual assault, because he had unprotected sex with eleven women without telling them he had HIV. Seven of the women subsequently tested HIV-positive, and two died of AIDS-related cancers within a couple of years of having had sex with Mr Aziga.

[A number of articles and blog posts on Mr Aziga's trial - and the media's reaction to it - can be found on my blog.]

Being a "dangerous offender" means he will likely remain in prison for the rest of his life - even in the unlikely event that his life sentence without the possibility of parole for 25 years for the murder convictions is overturned on appeal. [The whole "dangerous offender" process is considered by some legal experts to be discriminatory and "dangerous" because "putting the onus on criminals makes it too easy for the court system to declare people dangerous offenders.]

Johnson Aziga would have been at least 78 years old if he had been able to be considered for release after 25 years. And yet, somehow, the Canadian legal system considers that at this age, Mr Aziga's libido would be so voracious, his appeal so alluring to Canada's heterosexual female population, that he must be locked up for life.

Mr. Aziga's sex drive "is head and shoulders above" the average man's and "knowing his need for sex is not going to be satisfied" could deter him from disclosing his HIV status to potential partners, [Crown attorney Karen Shea argued]. "He didn't abstain from sex knowing what he knew (about having HIV), he didn't discuss his HIV status knowing what he knew and he didn't wear a condom knowing what he knew," she told the court.

I am the only person that sees this as absurd - as both racist and HIV-phobic?

The legal characterization of men of African origin with HIV as 'monstrously' hypersexual is not new. Back in 1993, Canada tried to convict Charles Ssenyonga of similar 'crimes' (His 'victims', like Aziga's, were all white women; his virus, like Aziga's, a "rare African strain".) Ssenyonga died before the trial concluded. The prosecution (and media's) focus on his hypersexual Africanness was explored in a fabulous 2005 article by James Miller, 'African Immigrant Damnation Syndrome: The Case of Charles Ssenyonga' published as part of a special issue of the social science journal, Sexuality Research & Social Policy called 'Reckless Vectors: The Infecting "Other" in HIV/AIDS Law.'

In the introduction by the journal's editors Heather Worth, Cindy Patton, and Diane Goldstein, they highlight the issue of racism in HIV criminal cases.

...the fact that the accused is African is used to indicate a priori an excessive and lethal sexuality and to position Africa itself as a deviant and viral continent and as the source and cause of AIDS. This prejudice extends to successive generations of African immigrants, as can be seen in the case of Nushawn Williams, an African American man from upstate New York. The same focus on Williams' Black, eroticized body is evident in the numerous media accounts of the case.

Interestingly, Nushawn Williams is currently going through exactly the same process as Mr Aziga, having already served the maximum sentence of 12 years for the 'crimes' he pleaded guilty to back in 1998. Back in May 2010, a New York State Supreme Court judge ruled that Mr Williams "poses a danger to society and as a result, must remain behind bars even though his sentence is complete." He is now awaiting the outcome of his civil confinement hearing that has been delayed for almost a year.

Mr Aziga and Mr Williams are being punished twice over. The idea that society is protected from HIV by keeping them in prison indefinitely is erroneous and outrageous. In the past men used to "lock up their daughters" when a man of purported huge sexual prowess came sniffing around, as if their female offspring did not have a sexuality or a choice in whether or not to have sex with their suitor.

Now, society locks up "HIV monsters" because it thinks female members of society need protecting from them, as if they did not have a sexuality or a choice in whether or not to have sex with their suitor.

But the real problem is that focusing on Black or African HIV (in the guise of Aziga or Williams) creates a false sense of security because all sex comes with risks of HIV infection (and these risks are usually much higher from someone with HIV who is undiagnosed, and therefore unable to disclose).

Wouldn't it be better - and more cost-effective - to spend some money on HIV prevention education for the general public, so that white heterosexual women, and others who think that they are not at risk for HIV because they haven't been targeted with HIV prevention information (usually aimed at 'key populations' like gay men and Black or African communities) can learn how to protect themselves from HIV rather than foolishly relying on the criminal law to protect them after the fact?

Edwin on: On the Web



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