Global Commission on HIV and the Law: Risks, Rights and Health
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Global Commission on HIV and the Law: Risks, Rights and Health
- 1. FINDINGS & RECOMMENDATIONS: Criminalisation of HIV Transmission, Exposure and Non-disclosure Dr. Christoph Hamelmann Regional Practice Leader HIV, Health and Development UNDP Europe and the CIS, Bratislava Regional Centre on behalf of Dr. Mandeep Dhaliwal Global Commission Secretariat DAH-EATG-IPPF HIV Criminalisation Seminar, 20 September 2012, Berlin, Germany
- 3. Criminalisation of HIV Transmission, Exposure & Non-disclosure • In over 60 countries, it is a crime to expose another person to HIV or to transmit it, especially through sex • Some 600 documented prosecutions of people living with HIV
- 4. General Findings (I) Overly broad criminalization provisions: • laws often vaguely worded, prosecutions for mother to child transmission, spitting or biting (ii) Prosecutions disproportionately target marginalized people • Example: Asylum seekers & immigrants (ii) Criminalization is only justifiable in very limited settings of malicious intend and proven transmission • Intend, harm, risk, proof, penalties
- 5. Criminalisation of HIV Transmission, Exposure & Non-disclosure FINDINGS: Criminal law is not a HIV prevention tool 1. No evidence that criminal prosecutions prevent new HIV infections 2. Such laws do not increase safer sex practices 3. Instead, criminalization of HIV transmission reinforces stigma and discrimination vs. PLHIV
- 6. Criminalisation of HIV Transmission, Exposure & Non-disclosure FINDINGS: Is criminalization ever justified? 1. The rare cases of malicious intentional transmission can be addressed by existing criminal or public health laws 2. Defining specific HIV offences is not warranted and, in fact, violates international human rights standards.
- 7. Recommendations of the Commission To ensure an effective, sustainable response to HIV that is consistent with human rights obligations: • Countries must not enact laws that explicitly criminalise HIV transmission, HIV exposure or failure to disclose HIV status • 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 have taken place
- 8. Recommendations of the Commission (continued) • Countries must amend or repeal any law that explicitly or effectively criminalizes vertical transmission of HIV • Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law • The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed
- 9. UNDP Follow Up in EECA • National dialogues on HIV and the Law • Strengthening capacities of CSOs and their engagement with governments • E-course (jointly with IDLO) for HIV, Law and Rights Enforcement • Know-your-rights and patient/client empowerment activities • Supporting CSOs on legal aid and rights monitoring • Facilitating regional HIV legal networking
- 10. Conclusions • There are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission • Rather, such application risks undermining public health and human rights
- 11. Thank You! Report of the Global Commission on HIV and the Law “Risks, Rights & Health” www.hivlawcommission.org Twitter: twitter.com/HIVLawCom Facebook: facebook.com/HIVLawCommission Regional Dialogue Issue Brief on HIV and the Law http://europeandcis.undp.org/ourwork/hivaids/ Contact: Christoph.hamelmann@undp.org
Notes de l'éditeur
- The Report of the Commission highlighted a few important concerns around criminalisation of HIV transmission or exposure to HIV1. Overly broad criminalisation provisions: There is evidence of wide-spread over-criminalisation of HIV. Laws including the criminalisation of reckless or careless acts and even non-sexual acts that expose, but carry a low risk of transmitting HIV. By widening the net of criminal liability, laws make potential criminals of a significant proportion of people living with HIV for unintentional acts that carry little risk of harm. This is irrational, unjust and discriminatory. Furthermore, it feeds into popular misconceptions about HIV and about people living with HIV. For example:Spitting: In Texas, an African-American mentally ill homeless man living with HIV spat at a police officer during an arrest for drunk and disorderly conduct. The jury was persuaded that his saliva was a deadly weapon,andhe got a thirty-five-year sentence—despite the fact that HIV cannot be transmitted by spitting. Some laws are so broadly written that theoretically speaking, they allow for the possible prosecution not only of spitting and biting, but even cases where HIV is transmitted from mother to child either in utero or through breastfeeding.Who is getting prosecuted?Prosecutions around HIV Transmission or exposure to HIV are often targeted at marganisalised groups. In its report, the Commission found that In Denmark, Estonia, Finland, Sweden and the UK, migrants and asylum seekers were disproportionately prosecuted for HIV transmission and exposure. The situation exascebated by sensational media stories which tend to enforce discriminatory attitudes and perceptions of minorities within the general populationWhen is criminalisation every justified?In very limited instances where HIV it can be proven that willful HIV transmission occurred. But it can be extremely difficult to prove willful transmission. Several factors including religious considerations, whether the defendant know his or her HIV status, whether the person alleged to be infected was aware of his or her HIV status can be difficult to determine. The emergence of recent evidence showing that people on antiretroviral treatment are far less likely to transmit HIV reinforce the argument that prosecutions are justifiable in very limited circumstances. For example, Denmark, recognizing that ART significantly reduces the risk of transmission and allows most HIV-positive people to live longer lives, suspended a law that made it a crime for HIV+ people to infect or expose others to the risk of infection.
- There are several types of laws criminalizing certain groups and behaviours with a direct impact on HIV in the regionDespite Several international policy documents including the Report of the Global Commission recommending the use of general criminal laws to prosecute the very limited instances where willful transmission of HIV can be proven, new HIV-specific laws have been enacted in several regions including sub-Saharan Africa, Latin America and EECA region. In EECA, a total of 14 countries including:Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Serbia, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan have specific articles in criminal codes criminalising not only willful transmission, but exposure to HIV.
- The Report of the Commission highlighted a few important concerns around criminalisation of HIV transmission or exposure to HIV1. Overly broad criminalisation provisions: There is evidence of wide-spread over-criminalisation of HIV. Laws including the criminalisation of reckless or careless acts and even non-sexual acts that expose, but carry a low risk of transmitting HIV. By widening the net of criminal liability, laws make potential criminals of a significant proportion of people living with HIV for unintentional acts that carry little risk of harm. This is irrational, unjust and discriminatory. Furthermore, it feeds into popular misconceptions about HIV and about people living with HIV. For example:Spitting: In Texas, an African-American mentally ill homeless man living with HIV spat at a police officer during an arrest for drunk and disorderly conduct. The jury was persuaded that his saliva was a deadly weapon,andhe got a thirty-five-year sentence—despite the fact that HIV cannot be transmitted by spitting. Some laws are so broadly written that theoretically speaking, they allow for the possible prosecution not only of spitting and biting, but even cases where HIV is transmitted from mother to child either in utero or through breastfeeding.Who is getting prosecuted?Prosecutions around HIV Transmission or exposure to HIV are often targeted at marganisalised groups. In its report, the Commission found that In Denmark, Estonia, Finland, Sweden and the UK, migrants and asylum seekers were disproportionately prosecuted for HIV transmission and exposure. The situation exascebated by sensational media stories which tend to enforce discriminatory attitudes and perceptions of minorities within the general populationWhen is criminalisation every justified?In very limited instances where HIV it can be proven that willful HIV transmission occurred. But it can be extremely difficult to prove willful transmission. Several factors including religious considerations, whether the defendant know his or her HIV status, whether the person alleged to be infected was aware of his or her HIV status can be difficult to determine. The emergence of recent evidence showing that people on antiretroviral treatment are far less likely to transmit HIV reinforce the argument that prosecutions are justifiable in very limited circumstances. For example, Denmark, recognizing that ART significantly reduces the risk of transmission and allows most HIV-positive people to live longer lives, suspended a law that made it a crime for HIV+ people to infect or expose others to the risk of infection.
- There is no evidence to suggest that such criminalisation achieves HIV, health and development goals. Instead, the available evidence suggests that punitive laws are an ineffective and disproportionate legal response to the epidemic: There is no evidence to show that laws that regulate the sexual conduct of people living with HIV impact such conduct or moderate risk behaviour. AIDS service organizations report that the threat of prosecution does not empower people living with HIV to avoid transmission. Nor does it motivate all people to protect themselves. Instead, it shifts the responsibility for prevention only onto people living with HIV. This runs counter to effective HIV prevention messages that call for shared responsibility. The fear caused by the criminalisation of HIV transmission and exposure isolates people living with HIV, discouraging access to HIV testing and other HIV prevention and care services and inhibits disclosure of HIV status, thereby undermining investments in HIV prevention, treatment and care.
- 1. Criminalisation is justified under one condition only:where individuals maliciously and intentionally transmit or expose others with the express purpose of causing harm. But existing laws—against assault, homicide and causing bodily harm, or allowing intervention where a person is spreading communicable diseases—suffice to prosecute people in those exceptional cases. That said, such laws are virtually impossible to prosecute. Intentional transmission is difficult to prove in the context of consensual sex. Alleging “recklessness” or “negligent” transmission is equally problematic.It requires proving the defendant’s state of mind—getting testimony from health care professionals, diaries or emails offering insight into a defendant’s thoughts. UNAIDS and UNDP have called on governments to limit criminalisation to cases where a person knows his or her HIV-positive status, acts with intent to transmit HIV and actually transmits it. However, most Western legal systems allow the defence of consent, thus preventing the punishment of, for example, Roman Catholic husbands with HIV whose wives have consented to the risk of transmission rather than offend against religious proscriptions concerning non-procreative sex.2. Defining specific HIV offences is not warranted and, in fact, violates international human rights standards:the International Guidelines on HIV and Human Rights, Guideline 4 directs States to ensure that their criminal laws “are not misused in the context of HIV/AIDS or targeted against vulnerable groups”
- Countries must not enact laws that explicitly criminalise 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. 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. Countries must amend or repeal any law that explicitly or effectively criminalises vertical transmission of HIV. While the process of review and repeal is under way, governments must place moratoria on enforcement of any such laws.
- 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. 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.
- On 18-19 May 2011, The EECA regional dialogue of the Global Commission on HIV and the Law was held in Chisinau, Moldova. The dialogue brought together representatives of government, civil society, and international organizations including the UN family to look at how punitive legal environments impede the AIDS response and how protective legal environments enable effective HIV responses.For 2012-2013, UNDP in partnership with UN agencies, government and civil society will be taking forward follow up of the Commission. This includes supporting countries on legislative review, law reform, national dialogues and action planning for law reform, judicial and Parliamentary sensitisation, strengthening access to justice and sensitisation of media and religious leaders.In the EECA region, in particular in Russia, Moldova and Ukraine, countries that criminalise HIV transmission, exposure and non-disclosure, follow up led by UNDP includes:National dialogues on HIV & the LawJudicial SensitisationStrengthening Access to Justice, Law enforcement & legal servicesActivities for Media & Religious Leader Sensitisation All these follow up activities will include an emphasis on the necessity to repeal HIV-specific laws and HIV-specific provisions in laws criminalising HIV transmission and exposure.
- 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. 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.