Filed under virus

How HIV criminalisation harms prevention, wrecks lives and doesn’t stop a single infection

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My op-ed in this week’s Star Observer:

Criminal law processes have been criticised internationally because they provide a disincentive to knowing your HIV status – instead of protecting people from HIV, they actually have a negative impact on prevention. In September, UNAIDS recommended that criminal prosecutions should only occur where HIV transmission actually occurs and where it can be shown that the accused intended to transmit HIV. The report also condemned the use of laws that criminalise non-disclosure of HIV status, such as those in NSW and Tasmania, and HIV-specific criminal laws, such as Victoria’s section 19A.

Read the full article on the Star Observer website.

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HIV infections are going up – or are they?

Lots of discussion over the last couple of days about the recently released annual surveillance report for HIV, which shows a big jump in the number of HIV notifications for the last year, especially in NSW. Obviously any rise in HIV is concerning and I’ll leave it to the experts to debate the likely causes of that rise, but as I have previously argued, a seemingly important measure of the infection rate remains unreported.

Three years ago, I argued that HIV infections aren’t going up, they’re going down – if you consider that the number of new infections must be a function of the number of people living with HIV, the picture over the last few years is starkly different. I’ve updated the data from that post in the chart below (click it for a larger version):

HIV infections 2000-2012

The pink line on the chart shows the number of new diagnoses per 100 people living with HIV, based on the Kirby Institute data. There has been a noticeable increase in that measure over the last year but this follows a long period of decline from a high in 2002 of 6.29 to a low in 2011 of 4.60 (incidence per 100 PLHIV).

My argument here is that, whenever an HIV infection occurs, one HIV-positive person is the source of that infection, and as the number of people living in the community with HIV rises, some rise in the total number of new infections is inevitable. The picture over the last few years shows that rise has been lower than would be predicted by the increase in the HIV-positive population alone, which I think is a strong sign that HIV prevention efforts have been working.

The increase in the last 12 months – from 4.60 to 4.87 (incidence per 100 PLHIV) – represents a 6 percent rise in infections, and while that’s lower than the 10 percent rise in the raw numbers, it’s definitely worrying. But it’s a single data point and we won’t know for a year or two if that is the beginning of a sustained rise or just a blip in the trend.

It’s understandable that researchers, government and the media are troubled by the annual jump in new infections (and it has been an annual event for many years now) but, as long as positive people are remaining healthy and sexually active, at least part of that rise is directly explained by the increase in the population of people who are available to be the source of new infections.

The usual caveats apply: I am neither an epidemiologist nor a statistician, and the only data I have to work with is that published in the surveillance reports. Happy to be corrected on any of the data or to be (politely) disagreed with as to my interpretation of it.

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The AIDS crisis in real time

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Starting today, buggery.org has a new baby sister – a side project I’m starting focusing on the history of the HIV epidemic in Australia.

Real Time AIDS is a Twitter feed, Facebook page and website that will re-highlight the daily events of Australia’s response to the early years of the epidemic, as they happened, but 30 years to the day after.

To put it another way, I’m live blogging the AIDS crisis, on a 30-year delay.

The month coming up marks the 30th anniversary of our first AIDS death, and the months and years following that were a time of hysteria, fear and ignorance that we had to fight to endure. While many of us remember at least some of those events, many of the details, the skirmishes, the daily grind of bad news in the papers, is lost. While few people would be interested in reading a lengthy compilation of those events, following Real Time AIDS on Twitter or Facebook will provide a reminder, every day or every few days, of where we were 30 years ago.

Most of the content will be drawn from media reports and other contemporaneous sources. A lot of it – especially in the early days – won’t be pretty, but I hope being reminded of those years of terror and struggle and death will help reinvigorate our efforts for the work that’s yet to be done.

As the website grows, it will also become a fully searchable, but incomplete, index of media, community and government responses to HIV in Australia – something I think would be of more than passing interest. Whether I can keep it up over the long term depends on your interest and my time. We’ll see.

Above: page one screamer from the [Sydney] Sun, 19 Nov 1984.

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The week: 1 June

I don’t remember taking the first pill but I do remember picking them up from the pharmacy. This was in August 1991 – a week or so after I got my HIV diagnosis. The doctor said the treatment options were limited, but there was a drug, called AZT, that would buy me some time. Of course, I’d heard of it.

So with my paperwork in hand I hesitatingly took myself to the pharmacy department at St Vincent’s hospital to pick up my drugs. The pharmacist looked dispassionately at my script, told me to wait, and a short while later handed my the biggest bucket of pills I’d ever seen in my life. It was a month’s supply, but it felt like enough for a year. I stashed the bucket out of sight and, when I got home to my flat in North Bondi, took my first dose. Two decades and sixty-something-thousand tablets later, I’m still here.

This week, I took another step on that path by starting HCV treatment. An extra seven pills a day, a period of abstinence from booze, and a hefty dose of luck, and by Christmas Iris and I hope to be rid of that uninvited hitchhiker for good. As I write this, four days in, I feel rather crap, but glad to have taken this step.

Meanwhile, in the real world, last week’s ugly racist incident at the MCG continues to have repercussions. Eddie McGuire, on Friday night one of the heroes of the story, reverted to form and made a spectacularly ignorant remark on Wednesday morning.

If we were all pulling together to avoid victimising a 13-year-old girl, when the 48-year-old president of Collingwood put his foot in his omnipresent mouth, it presents a unique opportunity for every pundit on the planet to weigh in. McGuire himself didn’t help things with a ham-fisted fauxpology, but the resulting Sturm un Drang did little to inform an understanding of the issue that went any further than ‘you shouldn’t say certain things or people might get upset’. A couple of notable exceptions: Debra Jopson in the (new!) Guardian Australia points out Australia’s ‘covert racism‘ and the six-year-old assault on Indigenous rights that is the Northern Territory Intervention. Helen Razer pointed out that Australia is a racist society and therefore she, he, and we are all racists, and ‘the only way out of this shunless truth is to acknowledge it’.

The Guardian finally launched its much-anticipated Australian edition and, lo, the luvvies were pleased (actually, it’s a welcome addition). It was National Sorry Day again. The British government said it wanted to supply more arms to Syrian rebels, and the Russian government said it would arm the Syrian government, opening the way for a horrible, drawn-out proxy war. An international drugs think-tank warned that the ‘War on Drugs‘ was driving a global hepatitis C epidemic. Cardinal George Pell fronted a Victorian parliamentary inquiry, admitting that the Church covered up paedophile priests, but not taking any responsibility himself. Julia Gillard tweeted in Dothraki. The remains of two Aboriginal men who were unearthed in Tathra in 1961 were reburied in a traditional ceremony. The NSW Court of Appeal ruled that not everyone is male or female.

And finally…

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How much evidence do you need?

Newly-elected AFAO vice-president Bridget Haire has a timely piece on the ABC Science website about HIV prevention technologies, calling for regulatory action to make these available in Australia.

If a person with HIV consistently takes effective anti-HIV medication, the chances of them infecting a sexual partner are close to zero. The condom, while remaining cheap, effective and sometimes convenient, is now just one part of the HIV prevention toolbox rather than the whole kit and kaboodle — in theory at least.

But in practice, access to these new forms of HIV prevention is constrained by regulatory systems, concerns about cost, and a fear of new technologies eroding the ‘condom culture’ that saw the whole scale adoption of condoms by gay men worldwide in the mid-80s, who perceived the threat of HIV, and improvised a form of protection.

Read the full article here.

Also recommended:

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Canada Supreme Court decision makes criminals of people with HIV

In a disappointing decision, the Supreme Court of Canada has wound back the rights of people with HIV significantly, finding that sex without disclosure is a criminal act except where the accused both has low viral load and condoms are used.

The judgments in two cases – R v. Mabior and R v. DC (the links go to the full judgment in each case, courtesy of the HIV Justice Network) – were handed down in Ottawa overnight, and have been widely condemned by HIV activists in Canada and around the world.

Many news reports have failed to grasp the significance of the ruling, focusing on the fact that the Court found that there are cases where disclosure is not required, rather than on the narrowness of the circumstances in which that is the case.

Mr Mabior was charged with nine counts of aggravated sexual assault relating to his failure to disclose his HIV status to nine women before he had sex with them. None of the women contracted HIV. At trial, Mabior was convicted on six of the nine charges, and acquitted on the remaining three. The Court of Appeal reduced the number of convictions to two, and the Crown appealed that decision to the Supreme Court, which has now restored three of the four convictions, meaning Mr Mabior will be sentenced for five counts.

The timeline of the case shows the Canadian courts trying to make sense of the principle that there should be disclosure where there is a significant risk of transmission:

  • The trial judge found that disclosure was required except where condoms were used;
  • The Court of Appeal found that either condoms or undetectable viral load were sufficient;
  • The Supreme Court found that both condoms and low viral load are required.

This is a significant backward step for people with HIV in Canada, who the Court seems to think of as criminals-in-waiting. The justices seem to have been incapable of grasping the idea of a reasonable level of risk. As Edwin Bernard points out, “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).” That risk is reduced by either condom use (80% reduction of risk according to the widely accepted Cochrane condom study) or undetectable viral load (96% according to the HPTN 052 study). So the Court believes that a 1-in-10,000 risk of transmission (vaginal sex with a condom) or a 1-in-50,000 risk (vaginal sex with undetectable viral load) represent a “realistic possibility of HIV transmission” and the bar has now been raised to a 1-in-250,000 risk (vaginal sex with undetectable viral load and a condom).

As well as potentially criminalising many thousands of HIV-positive Canadians for simply keeping their HIV status private while engaging in consensual, low-risk sex with no transmission of HIV, this case will discourage many people from testing for HIV: why test for HIV when the law treats you as a potential criminal if you test positive? That will lead to increased HIV transmissions, as we know the majority of new infections come from people who do not know their HIV status and are consequently not on treatment (high viral load) and less likely to use condoms.

This response from Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, neatly summarises the devastating impact of this decision:

We are dismayed and shocked by the Supreme Court’s decision. It is a step backward for public health and for human rights. The Court purports to maintain the current standard that a “significant risk” of HIV transmission is required in order to trigger the legal duty to disclose. But given today’s judgment, this is an illusory limit to the criminal law. The Supreme Court has ignored the solid science and has opened the door to convictions for non-disclosure even where the risk of transmission is negligible – in the realm of 1 in 100,000.

Such an approach gives a stamp of approval to AIDS-phobia and fuels misinformation, fear and stigma surrounding HIV. In practice, the Court’s ruling means that people risk being criminally prosecuted even in cases where they took precautions such as using condoms – which are 100% effective when used properly. This decision will not only lead to continued injustice but undermines public health efforts. It creates another disincentive to getting an HIV test and creates a further chill on what people can disclose to health professionals and support workers.

People living with HIV need more health and social supports; they don’t need the constant threat of criminal accusations and possible imprisonment hanging over their heads.

Criminal prosecutions for HIV exposure and transmission have been rising worldwide, including here in Australia, and it is an ongoing challenge for HIV advocates to bring the law in line with reality, balancing the need to protect individuals with the human rights of people with HIV. The issues are complex but unfortunately, courts around the world have shown themselves to be needlessly conservative and often wilfully ignore scientific evidence, placing virtually all of the onus for HIV prevention on people with HIV and often, as is the case in Canada, criminalising behaviour which has no risk of HIV transmission whatsoever, in a real-world sense.

(Note: The numbers in the paragraph starting “This is a significant backward step…” are rough calculations made by me based on the results of several different studies and are meant to be illustrative of the levels of risk the Court has been dealing with, rather than scientifically valid statements of risk.)

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Bryce Courtenay: ‘I’m sorry’

Best-selling Australian author Bryce Courtenay has apologised for his use of the term ‘innocent’ to describe people with medically-acquired HIV/AIDS.

After the publication of his book April Fool’s Day in 1993, Courtenay was criticised for describing his haemophiliac son, Damon, as an innocent victim of AIDS.

In an interview broadcast on ABC Radio National’s Breakfast program this morning, Courtenay said:

The word ‘innocent’ was unfortunate, it really was. It was never used in the book and I think I used it once. People had a — certainly, homosexual people — had a right to be angry. But the net result of April Fool’s Day was the most important book I think I’ve ever written and had it not been for Damon saying, “Dad, you have to tell the world that it’s not a punishment from God; it’s a virus,” I may never have written the book. […]

But yes, for anybody I offended with the word ‘innocent’ I humbly apologise because we’ve come a long way since.

It’s good that Courtenay has finally acknowledged his mistake, albeit 17 years after the outcry it caused. While no compassionate person could fail to sympathise with Courtenay’s grief at losing his 24-year-old son, separating people with AIDS into ‘innocent’ and ‘guilty’ victims is plainly offensive, as it suggests some people with the virus deserved to get it, or are culpable for the ‘innocents’ infection. Language like this led to increased stigma among gay men, who were blamed for the spread of HIV at the very time they were taking the lead in combating and containing it.

The Australian Federation of AIDS Organisations publishes a media guide that explains why the term ‘innocent victim’ is offensive:

‘Innocent victims’ is usually used to describe children with HIV, or people with medically-acquired HIV infection. It implies that people infected in other ways are guilty of some wrong-doing and deserved to be infected with HIV. This feeds stigma and discrimination and should be avoided.

Courtenay, who is 79, has announced that he has terminal cancer and that his current book will be his last.

(Hat tip: Daniel Reeders)

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Public Health Act 2010 (NSW) starts today

New South Wales has a new Public Health Act starting today, with a small but important change in the way the Act deals with HIV.

The revised Act was passed by the previous Labor government, but has been waiting for gazettal for the last two years. NSW is one of two states in Australia (the other is Tasmania) that legally mandate HIV disclosure before sex, and the changes to the Act provide a new defence to prosecution for non-disclosure if the HIV-positive person can show they took ‘reasonable precautions’ to prevent transmission.

Continue reading

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Grim reaper ads a ‘missed opportunity’

The Queensland Association for Healthy Communities has responded to the state government’s new HIV prevention scare campaign, calling it a ‘missed opportunity’ in an article in the Star Observer.

“While we welcome increased public attention to HIV, this is a missed opportunity the update people on the reality of living with HIV today,” [QAHC CEO Paul] Martin said.

“It is also a missed opportunity to encourage people who may be at risk to come forward for testing and treatment and to inform and remind people how to prevent transmission of HIV.”

Responding to the criticism of the ad, Queensland Health Minister Lawrence Springborg said, “We needed a campaign that would reach everybody.”

Well, no. While ‘everybody’ should be aware of HIV and take steps to prevent themselves, not ‘everybody’ is at equal risk. More than 80% of people diagnosed in Queensland are gay men, which is why previous Queensland governments funded QAHC to do prevention work targeted at gay men. Spending a half-million dollars on a TV campaign to tell ‘everybody’ about HIV is not a cost-effective way to educate people who are at real risk.

Yours truly also gets a mention in the story:

Local LGBTI community member Paul Kidd released his own version of the new commercial on YouTube supporting QAHC, titled ‘Lawrence Springborg Shouldn’t Be Making This Ad’.

Read the full Star Observer article, or my earlier post on this subject, with my remixed version of the video.

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