Tagged with criminalisation

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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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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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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How to fight an epidemic of bad laws

“The law can seem remote, arcane, the stuff of specialists. But it isn’t, because for those of us who live in democracies, the law begins with us,” says Shereen El-Feki, vice-chair of the Global Commission on HIV and the Law, in this TED talk.

The talk is a very fine summary of the issues around HIV criminalisation and its unintended effects. The comments below the video, alas, show how far we have to go.

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The perfect storm

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Last week’s arrest of an African-Australian circus acrobat accused of transmitting HIV to a Queensland woman has, predictably, generated more than its fair share of media excitement.

In some ways it’s this particular case represents is a kind of perfect storm for reporting about criminality and HIV transmission: not only does the alleged perpetrator conveniently come from deepest, darkest Africa (racism is well and truly alive) but he’s devastatingly handsome and has conveniently left a trail of news-ready shirtless photos and even video of his appearances on a TV talent show.

Plus, he has “admitted to having sex with a number of women in several states” (in other words, he’s cooperating with the police investigation, although you won’t hear it put that way in the press) so we readily have the ‘hunt for victims’ angle and the story gets to run for days and days as we get trickle-fed details about his life and the trail of broken hearts he has presumably left in his wake.

At this point it bears pointing out that one woman on the Gold Coast has tested HIV-positive; she is the complainant that led to the investigation and his subsequent arrest and extradition. It has not yet been proven that he is the source of her HIV infection, and he is entitled to the presumption of innocence until such time as it is.

But you might think differently if you don’t read the media carefully (emphasis added in the following quotes):

AN HIV-infected circus performer who had sex with up to 12 women without telling them of his medical history will appear in a Queensland court today, as health authorities continue to search for the women involved. (‘Zimbabwe-born acrobat to be tried for infecting women with HIV’, The Australian 26 May)

A HIV-positive circus acrobat who appeared on Australia’s Got Talent has triggered a national health scare after allegations he had unprotected sex with at least 11 women, including some from NSW. (‘Hunt is on for HIV man’s partners’, Daily Telegraph 26 May)

Authorities fear at least 12 women may have been deliberately infected with the HIV virus by a Zimbabwe-born circus acrobat. (‘Circus acrobat accused of spreading HIV appeared on Australia’s Got Talent’, Brisbane Times 26 May)

GODFREY Zaburoni allegedly boasted about sleeping with more than 500 women and sometimes brought home three different girls a week, says one of his former flatmates. (‘Zaburoni’s drunken boast of conquests’, Gold Coast Bulletin 27 May)

THE tragic story that dozens — possibly hundreds — of young women may have been infected with HIV by one man is a timely reminder that more education is needed of this deadly modern plague. (‘Awareness of AIDS will save lives’, Gold Coast Bulletin editorial, 27 May)

Mr Zaburoni’s Facebook page has more than 300 friends, many women. (‘HIV man’s claim: I had Vic lovers’, Herald Sun 30 May)

Is this the evolution of a moral panic? One woman has been confirmed HIV-positive, then within days there are 11, 12, dozens, hundreds of women imagined by the media to have been infected with HIV. Then to top it off we have the crucial detail that his Facebook profile “has more than 300 friends, many women.” So has mine, and probably yours.

CC-licensed image above: alien sex fiend by boogah.

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