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October 2018                                                                                View this email in your browser 
HIV Justice Worldwide - October 2018

Meeting report and evaluation now available
 

Beyond Blame 2018: Challenging HIV Criminalisation was a one-day meeting for activists, advocates, judges, lawyers, scientists, healthcare professionals and researchers working to end HIV criminalisation. Held at the historic De Balie in Amsterdam, immediately preceding the 22nd International AIDS Conference (AIDS 2018), the meeting was convened by HIV JUSTICE WORLDWIDE and supported by a grant from the Robert Carr Fund for Civil Society Networks.

The Meeting Report and Evaluation, written by the meeting’s lead rapporteur, Sally Cameron, Senior Policy Analyst for the HIV Justice Network, is now available for download here.

The meeting discussed progress on the global effort to combat the unjust use of the criminal law against people living with HIV, including practical opportunities for advocates working in different jurisdictions to share knowledge, collaborate, and energise the global fight against HIV criminalisation. The programme included keynote presentations, interactive panels, and more intimate workshops focusing on critical issues in the fight against HIV criminalisation around the world.

The more than 150 attendees at the meeting came from 30 countries covering most regions of the world including Africa, Asia and the Pacific, Eastern Europe and Central Asia, Latin and North America and Western Europe. Participation was extended to a global audience through livestreaming of the meeting on the HIV JUSTICE WORLDWIDE YouTube Channel, with interaction facilitated through the use of Twitter (using the hashtag #BeyondBlame2018) to ask questions of panellists and other speakers. See our Twitter Moments story here.

Following the meeting, participants were surveyed to gauge the event’s success. All participants rated Beyond Blame 2018 as good (6%), very good (37%), or excellent (57%), with 100% of participants saying that Beyond Blame 2018 had provided useful information and evidence they could use to advocate against HIV criminalisation. 

A video recording of the entire meeting is available on HIV JUSTICE WORLDWIDE’s YouTube Chanel 
 

Key points

  • The experience of HIV criminalisation was a poor fit for individual’s actions and the consequences of those actions, particularly where actions included little or no possibility of transmission or where courts did not address scientific evidence
  • The consequences of prosecution for alleged HIV non-disclosure prior to sex are enormous and may include being ostracised, dealing with trauma and ongoing mental health issues, loss of social standing, financial instability, multiple barriers to participation in society, and sex offender registration
  • Survivors of the experience shared a sense of solidarity with others who had been through the system, and were determined to use their voices to create change so that others do not have to go through similar experiences
  • Becoming an advocate against HIV criminalisation is empowering and helps to make sense of individuals’ experiences
  • The movement against HIV criminalisation has grown significantly over the last decade but as the movement has grown, so has understanding of the breadth of the issue, with new cases and laws frequently uncovered in different parts of the world.
  • As well as stigma, there are multiple structural barriers in place enabling HIV criminalisation, including lags in getting modern science into courtrooms and incentives for police to bring cases for prosecution.
  • Community mobilisation is vital to successful advocacy. That work requires funding, education, and dialogue among those most affected to develop local agendas for change.
  • Criminalisation is complex and more work is required to build legal literacy of local communities.
  • Regional and global organisations play a vital role supporting local organisations to network and increase understanding and capacity for advocacy.
  • There have already been many advocacy successes, frequently the result of interagency collaboration and effective community mobilisation.
  • It is critical to frame advocacy against HIV criminalisation around justice, effective public health strategy andscience rather than relying on science alone, as this more comprehensive framing is both more strategic and will help prevent injustices that may result from a reliance on science alone.
  • There have been lengthy delays between scientific and medical understanding of HIV being substantiated in large scale, authoritative trials, and that knowledge being accepted by courts.
  • Improving courts’ understanding that effective treatment radically reduces HIV transmission risk (galvanised in the grassroots ‘U=U’ movement) has the potential to dramatically decrease the number of prosecutions and convictions associated with HIV criminalisation and could lead to a modernisation of HIV-related laws.
  • Great care must be exercised when advocating a ‘U=U’ position at policy/law reform level, as doing so has the potential to deflect attention from issues of justice, particularly the need to repeal HIV-specific laws, stop the overly broad application of laws, and ensure that people who are not on treatment, cannot access viral load testing and/or who have a detectable viral load are not left behind.
  • Courts’ poor understanding of the effectiveness of modern antiretroviral therapies contributes to laws being inappropriately applied and people being convicted and sentenced to lengthy jail terms because of an exaggerated perception of ‘the harms’ caused by HIV.
  • HIV-related stigma remains a major impediment to the application of modern science into the courtroom, and a major issue undermining justice for people living with HIV throughout all legal systems.
  • HIV prevention, including individuals living with HIV accessing and remaining on treatment, is as much the responsibility of governments as individuals, and governments should ensure accessible, affordable and supportive health systems to enable everyone to access HIV prevention and treatment.
  • New education campaigns are required, bringing modern scientific understanding into community health education.
  • Continuing to work in silos is slowing our response to the HIV epidemic.
  • HIV criminalisation plays out in social contexts, with patriarchal social structures and gender discrimination intersecting with race, class, sexuality and other factors to exacerbate existing social inequalities.
  • Women’s efforts to seek protections from the criminal justice system are not always feminist; they often further the carceral state and promote criminalisation.
  • Interventions by some purporting to speak on behalf of women’s safety or HIV prevention efforts have delivered limited successes because social power, the structuring of laws and the ways laws are administered remain rooted in patriarchal power and structural violence.
  • Feminist approaches must recognise that women’s experiences differ according to a range of factors including race, class, types of work, immigration status, the experience of colonisation, and others.
  • For many women, HIV disclosure is not a safe option.
  • More work is needed to increase legal literacy and support for local women to develop and lead HIV criminalisation advocacy based on their local context.
  • When women affected by HIV have had the opportunity to consider the way that ‘protective’ HIV laws are likely to be applied, they have often concluded that those laws will be used against them and have taken action to advocate against the use of those laws.

At the end of the meeting, participants were asked to make some closing observations. These included:

  • Recognising that the event had allowed a variety of voices to be heard. In particular, autobiographical voices were the most authentic and most powerful: people speaking about their own experiences. This model which deferred to those communicating personal experiences, should be use when speaking to those in power.
  • Appreciating that there was enormous value in hearing concrete examples of how people are working to address HIV criminalisation, particularly when working intersectionally. It is important to capture these practical examples and make them available (noting practical examples will form the focus of the pending Advancing HIV Justice 3 report).
  • Understanding that U=U is based on a degree of privilege that is not shared by all people living with HIV. It is vital that accurate science informs HIV criminalisation as a means to reduce the number of people being prosecuted, however, people who are not on treatment are likely to become the new ‘scapegoats’. It is important that we take all opportunities to build bridges between U=U and anti-HIV criminalisation advocates, to create strong pathways to work together and support shared work.
  • Noting the importance of calling out racism and colonialism and their effects.
  • Observing that more effort is required to better understand and improve the role of police, health care providers and peer educators to limit HIV criminalisation.
  • Exploring innovative ways to advocate against HIV criminalisation, including community education work through the use of art, theatre, dance and other mechanisms.
  • Concluding that we must challenge ourselves going forward. That we must make the circle bigger. That next time we meet, we should challenge ourselves to bring someone who doesn’t agree with us. That we each find five people who aren’t on our side or don’t believe HIV criminalisation is a problem and we find ways and means (including funding) to bring them to the next Beyond Blame.

In solidarity, 

Edwin J Bernard
Global Co-ordinator, HIV Justice Network / HIV JUSTICE WORLDWIDE


 
Click here to download the 54-page report
WATCH THE VIDEO OF THE MEETING BELOW
 
HIV Criminalisation high on the agenda at AIDS 2018
 

For the first time since Edwin Cameron’s call to action at AIDS 2008 in Mexico City, HIV criminalisation was on the agenda during a main morning plenary session, Breaking barriers of inequity in the HIV response’ on Tuesday 24th July.

HIV criminalisation survivor, and Sero Project Assistant Director, Robert Suttle, and KELIN’s Executive Director, Allan Maleche, spoke about, ‘Putting HIV science into the criminal justice system: Impacting lives’.

The conference participants saw a remarkable number of posters on HIV criminalisation and legal reform, with 13 posters presented and the conference also included some strong panels focussing on advocacy and legal environments.

Some of the posters, abstracts and slides presented at the conference can be viewed here.

 

AIDS 2018: HIV JUSTICE WORLDWIDE activities

Bringing Science to justice: End HIV Criminalisation now


Networks of people living with HIV and human rights and legal organisations worldwide welcome the Expert Consensus Statement on the Science of HIV in the Context of Criminal Law


Amsterdam, July 25, 2018 — 20 of the world’s leading HIV scientists released a ground-breaking Expert Consensus Statement providing their conclusive opinion on the low-to-no possibility of a person living with HIV transmitting the virus in various situations, including the per-act transmission likelihood, or lack thereof, for different sexual acts. This Statement was further endorsed by the International AIDS Society (IAS), the International Association of Providers of AIDS Care (IAPAC), the Joint United Nations Programme on HIV/AIDS (UNAIDS) and 70 additional experts from 46 countries around the world.

The Expert Consensus Statement was written to both assist scientific experts considering individual criminal cases, and also to urge governments and criminal justice system actors to ensure that any application of the criminal law in cases related to HIV is informed by scientific evidence rather than stigma and fear. The Statement was published in the peer-reviewed Journal of the International AIDS Society (JIAS) and launched at a critical moment during the 22nd International AIDS Conference.

“As long-time activists who have been clamouring for a common, expert understanding of the current science around HIV, we are delighted with the content and widespread support for this Statement,” said Edwin J Bernard, Global Co-ordinator of the HIV Justice Network, secretariat to the HIV JUSTICE WORLDWIDE campaign. “Eminent, award-winning scientists from all regions of the world have come together to provide a clarion call for HIV justice, providing us with an important new advocacy tool for an HIV criminalisation-free world.”

The Statement provides the first globally-relevant expert opinion regarding individual HIV transmission dynamics (i.e., the ‘possibility’ of transmission), long-term impact of chronic HIV infection (i.e., the ‘harm’ of HIV), and the application of phylogenetic analysis (i.e., whether or not this can be used as definitive ‘proof’ of who infected whom). Based on a detailed analysis of scientific and medical research, it describes the possibility of HIV transmission related to a specific act during sexual activity, biting or spitting as ranging from low to no possibility. It also clearly states that HIV is a chronic, manageable health condition in the context of access to treatment, and that while phylogenetic results can exonerate a defendant when the results exclude them as the source of a complainant’s HIV infection, they cannot conclusively prove that one person infected another.

“Around the world, we are seeing prosecutions against people living with HIV who had no intent to cause harm. Many did not transmit HIV and indeed posed no actual risk of transmission,” said Cécile Kazatchkine, Senior Policy Analyst with the Canadian HIV/AIDS Legal Network, a member and key partner organisation of the HIV JUSTICE WORLDWIDE campaign. “These prosecutions are unjust, and today’s Expert Consensus Statement confirms that the law is going much too far.”

Countless people living with HIV around the world are currently languishing in prisons having been found guilty of HIV-related ‘crimes’ that, according the Expert Consensus Statement, do not align with current science. One of those is Sero Project Board Member, Kerry Thomas from Idaho, who says: “I practiced all the things I knew to be essential to protect my sexual partner: working closely with my doctor, having an undetectable viral load, and using condoms.  But in terms of the law, all that mattered was whether or not I disclosed. I am now serving a 30-year sentence.”

While the Statement is extremely important, it is also crucial to recognise that we cannot end HIV criminalisation through science alone. Due to the numerous human rights and public health concerns associated with HIV criminalisation, UNAIDS, the Global Commission on HIV and the Law, the UN Committee on the Elimination of Discrimination against Women, and the UN Special Rapporteur on the Right to Health, among others, have all urged governments worldwide to limit the use of the criminal law to cases of intentional HIV transmission. (These are extremely rare cases wherein a person knows their HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit the virus.)

We must also never lose sight of the intersectional ways that — due to factors such as race, gender, economic or legal residency status, among others — access to HIV treatment and/or viral load testing, and ability to negotiate condom use are more limited for some people than others. These are also the same people who are less likely to encounter fair treatment in court, within the medical system, or in the media.

“Instead of protecting women, HIV criminalisation places women living with HIV at increased risk of violence, abuse and prosecution,” says Michaela Clayton, Executive Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The scientific community has spoken, and now the criminal justice system, law and policymakers must also consider the impact of prosecutions on the human rights of people living with HIV, including women living with HIV, to prevent miscarriages of justice and positively impact the HIV response.”

HIV criminalisation is a pervasive illustration of systemic discrimination against people living with HIV who continue to be stigmatised and discriminated against on the basis of their status. We applaud this Statement and hope it will help end HIV criminalisation by challenging all-too-common mis-conceptions about the consequences of living with the virus, and how it is and is not transmitted. It is indeed time to bring science to HIV justice.

To read the full Expert Consensus Statement, which is also available in French, Spanish and Russian in the Supplementary Materials, please visit the Journal of the International AIDS Society at https://onlinelibrary.wiley.com/doi/full/10.1002/jia2.25161

Visit the HIV JUSTICE WORLDWIDE website to read a short summary of the Expert Consensus statement here: http://www.hivjusticeworldwide.org/en/expert-statement/

To understand more about the context of the Expert Consensus Statement go to: http://www.hivjusticeworldwide.org/en/expert-statement-faq/
 


Southern Africa Litigation Centre


On 23 July, SALC’s Health Rights Lawyer, Annabel Raw, presented on the role of strategic litigation in the case of EL v the State in Malawi (the successful appeal against a conviction of a woman living with HIV for breastfeeding) at a satellite session organised by the UNDP on the Results and Successes of the Global Fund “Africa Regional Grant on HIV: Removing Legal Barriers”.

On 24 July, SALC, ARASA and its country partners from Malawi exhibited a poster entitled “My Body My Right! The Power of Women’s Advocacy in Defeating HIV Criminalisation in Malawi’s HIV Bill.”
 



Canadian HIV/AIDS Legal Network

The Canadian HIV/AIDS Legal Network took a critical look at HIV criminalization during AIDS 2018 in Amsterdam this past July. Staff gave oral presentations (“The defence does not rest: Resisting the criminalization of HIV”), participated on panel discussions (“The future is female: Women’s leadership in HIV criminalization research and activism”) and workshops (“Fighting Discriminatory HIV Laws: Practical skills for documenting, monitoring, reporting, and organizing to end HIV criminalization”) on this important issue.

Additionally, Legal Network staff co-organized Beyond Blame with HIV JUSTICE WORLDWIDE (HJWW), also participating as panelists and workshop leaders for the session. This included a workshop on “Working with the Media,” which resulted in a thoughtful media piece about unhelpful media narratives in HIV criminalization. We also supported the participation of survivor and activist Chad Clarke, who presented at Beyond Blame and also at the Canada Pavilion.

At the same time, the Legal Network partnered with our fellow HJWW Steering Committee member, AIDS and Rights Alliance for Southern Africa (ARASA), to host the Human Rights Networking Zone (HRNZ), a space for advocates, allies and conference attendees to come together and discuss human rights issues related to HIV. This year, the HRNZ launched a campaign — “Human Rights + Science = HIV JUSTICE” — focused on the need for criminal law reform around the world to resist the criminalization of HIV. The HRNZ highlighted startling graphics showing the state of criminalization worldwide and several video presentations demonstrating the real impact criminalization has on the lives of those affected, including in Canada.  Our interactive photo booth also featured messages of support to stop HIV criminalization, and we welcomed hundreds of visitors who took to social media to express their concerns and solidarity. In addition to the HRNZ programming and panel related to criminalization, the Legal Network produced popular campaign t-shirts — which made it all the way into the Track D (Social and political research, law, policy and human rights) Rapporteur’s closing presentation to the conference. It should also be noted that Canada’s Minister of Health spoke at AIDS 2018, remarking on HIV criminalization, and that we continue to engage with federal and provincial governments here at home on this issue.

 

AIDS-Free World

Following AIDS 2016 in Durban, and last year at ICASA in Abidjan, AIDS-Free World once again held a Legal Consultation Center (LCC) in Amsterdam bringing together lawyers from around the world and providing an opportunity for conference delegates and members of the public to have an initial conversation with an attorney, free of charge. In addition to AIDS-Free World's knowledgable staff attorneys, representatives from many other organisations around the world also participated. More information on AIDS-Free World LCCs is available here.  
 
Features, opinions and analysis

HIV criminalisation is bad policy based on bad science
The Lancet HIV
Vol 5 September 2018

In February, 2018, a 30-year-old man in Kenya was charged with transmission of HIV after he allegedly bit a police officer while resisting arrest. In March, a woman in the USA was arrested for alleged criminal exposure to HIV through spitting. And in July, a Canadian man was sentenced to 43 months in prison for not disclosing his HIV status, even though his sexual partners did not contract the virus. Too often, the criminal law is applied to people with HIV in an overly broad manner. To combat myths and misconceptions that fuel HIV criminalisation, 20 experts in HIV science, epidemiology, and clinical care have released a consensus statement on the science of HIV in the context of criminal law, launched in Amsterdam, the Netherlands, on July 25 at the AIDS 2018 conference.

Amid moral panic about AIDS, in 1987 the USA became the first country to introduce HIV-specific criminal laws. Today, at least 68 countries have laws that criminalise HIV transmission, non-disclosure, or exposure, and 33 countries have used other criminal laws to prosecute such cases. Between April, 2013, and October, 2015, the HIV Justice Network recorded at least 313 arrests, prosecutions, and convictions in 28 countries for these crimes, with the highest numbers occurring in Russia (115), the USA (104), Belarus (20), and Canada (17). In many jurisdictions, the content and application of these laws do not account for the true nature of HIV exposure and transmission risks, the scientific limitations involved in proving whether a person transmitted the virus to another, or the realities of living with HIV in the era of effective anitiretroviral therapy (ART). Some people have been prosecuted where actual transmission of HIV did not occur or was not even alleged, when harm was not intended, and where the risk of transmission was very low. As a result, rather than being reserved for cases where an individual intentionally transmits the virus to another person—as advocated by UNAIDS and others— these laws often impose criminal liability on no better basis than the fact that a defendant has HIV.

The consensus statement is intended to assist experts involved in cases of alleged HIV exposure, transmission, or non-disclosure. It reiterates several longstanding facts, including that HIV is not transmitted through saliva by biting, spitting, or kissing, and that correct use of a condom prevents HIV transmission. It also provides updated information on the risk of transmission in the context of ART use and successful viral suppression, the effectiveness of pre-exposure prophylaxis, and the likelihood of transmission through different sexual acts. Key messages include that there is effectively no risk of HIV transmission by a person who has an undetectable viral load, that phylogenetic analysis cannot conclusively prove that one person transmitted HIV to another, and that ART has led to a dramatic reduction in HIV- associated morbidity and mortality, such that people living with HIV can live long and fulfilling lives.

Criminalising people for having HIV is a violation of human rights that undermines public health efforts to control the epidemic. Prosecutions for HIV-specific crimes often flout core legal principles such as intent and causation. There is no evidence that applying the criminal law to HIV reduces its spread. Rather, such approaches promote fear and stigma about HIV, can adversely affect relationships between patients and health-care providers, and can discourage people from seeking HIV testing and treatment. HIV criminalisation has particularly profound effects on women. Because women are often the first in a household to learn their HIV status, they can become vulnerable to blame and violence. The threat of prosecution is a potential disincentive for women to leave abusive relationships, and some laws are so broad that they criminalise transmission of HIV during pregnancy and breastfeeding.

The consensus statement is a welcome contribution to efforts to end the overly broad application of criminal law in HIV. Alongside better use of scientific and medical evidence in legal settings, however, prosecutors, governments, policy makers, and medical and legal professionals must recognise that the only effective approach to ending the HIV epidemic is a rights-based approach. In 1991, former Justice of the Australian High Court Michael Kirby argued in The Ten Commandments for AIDS Law that “respect for universal rights is most needed when they are most at risk of being forgotten, as in the middle of an epidemic”, concluding that by winning the trust of people affected by HIV “we protect them—and by protecting them, we protect ourselves and our world”. HIV criminalisation alienates and stigmatises already vulnerable populations at a time when their engagement with services is most critical.
 

HIV Criminalisation News from Around the World

Belarus: Roundtable attended by representatives of state and international organisations discuss possible amendments to the criminal code in cases of HIV transmissions.
October 5, 2018 - From People Plus
Round table on the decriminalization of HIV transmission in couples.

Argentina: Regional Parliament in Mendoza to vote on law reform including 30 days jail sentence for HIV transmission.
September 14, 2018 - From Perfil
Debaten en Mendoza enviar a prisión a personas que “transmitan VIH”

Global: Lancet editorial welcomes the recent consensus statement on science and HIV criminalisation.
September 7, 2018 - From the Lancet
HIV criminalisation is bad policy based on bad science

EECA: Eurasian Women’s Network on AIDS launches awareness campaign to draw attention to HIV criminalisation in EECA region.

September 3, 2018 - From Chase the Virus, not the People
Eurasian Women’s Network on AIDS is launching the “HIV Is Not a Crime” information campaign
 
China: Members of National People’s Congress call for laws to punish people living with HIV for HIV non-disclosure

September 5, 2018 - From SupChina
NPC Members Call For Criminalization Of HIV Non–Disclosure

US: Coalition of US organisations and networks issue Call to Action for HIV Criminal Law Reform grounded in racial justice.
August 26, 2018  
CALL TO ACTION for Racial Justice in HIV Criminal Law Reform

Canada: Study highlights how the criminal law does not consider the gendered power unbalance of HIV disclosure.
August 26, 2018 - From Plos One
Positive sexuality: HIV disclosure, gender, violence and the law—A qualitative study
 
Zimbabwe: Punitive laws reverse the gains made in the fight against HIV in Zimbabwe and should be reconsidered.

August 20, 2018 - From The Zimbabwe Mail
Outdated, punitive laws are encouraging HIV stigma in Zimbabwe

Nepal: New law introduces jail sentences and fines for HIV and hepatitis transmission.
August 15, 2018 - From The Himalayan Times
New laws come into effect tomorrow
 
US: Anti-criminalisation advocates worried about use of molecular surveillance to identify transmission clusters.

August 14, 2018 - From Poz
Will the Genetic Analysis–Based HIV Surveillance Safeguard Privacy?

Russia: Russian Human Rights Council favours criminal punishment over education for HIV denialism, thought to be affecting minors’ HIV care.
August 8, 2018 - From RAPSI
Russian Human Rights Council proposes criminal penalty for HIV denialism

Fiji: National Substance Abuse Advisory Council training of trainers workshop advises participants that having sex without disclosing is a criminal act.
August 5, 2018 - From Fiji Sun
Knowingly spreading HIV is a crime
 

Latest HIV Criminalisation Cases

Russia
Man sentenced in Novosibirsk to two years in settlement colony for alleged HIV transmission
Новосибирец намеренно заразил знакомую ВИЧ: ему дали реальный срок

October 5, 2018

France

47-year-old in court in Nancy for not disclosing his HIV status to his partners
Jugé pour avoir tu sa séropositivité
October 5, 2018


US
20-year-old student charged in Georgia with aggravated sexual battery and reckless conduct for alleged HIV exposure
HIV positive man charged with aggravated sexual battery, reckless conduct

October 3, 2018
 
Kenya
29-year old woman arrested and charged with alleged intentional transmission for breastfeeding a baby
HIV–positive woman, 29, denies infecting baby by breastfeeding
September 26, 2018

 
Australia
Idaho man charged with “knowingly transferring bodily fluid which may contain HIV”
Police: Twin Falls man may have knowingly spread HIV; detectives ask victims to come forward
September 26, 2018

 
Canada
Ontario Court finds 25-year old guilty of aggravated sexual assault for not disclosing his status, despite being on treatment and consistently using condoms
HIV–positive man had ’absolute disregard’ for women he slept with and should go to jail, says Crown

September 25, 2018
 
UK
23-year-old man of Ghanaian background found guilty of reckless grievous bodily harm, sentenced to five years for alleged HIV transmission to two young women
Man jailed for lying to girlfriends and knowingly infecting them with HIV
September 24, 2018
 
Since June 22, 2018, there have been 32 reported cases from around the world.
If you know of others, please contact 
info@hivjustice.net
 
 
                                                                          
     

                                                

 



Supported by a grant from the Robert Carr civil society Networks Fund.
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