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Yesterday, the House of Commons Standing Committee of Justice and Human Rights released a ground-breaking report “The Criminalization of HIV Non-Disclosure in Canada” recommending that the Government of Canada works with each of the Canadian provinces and territories to end the use of sexual assault law to prosecute allegations of HIV non-disclosure.

According to a press release issued by our HIV JUSTICE WORLDWIDE partners, the Canadian HIV/AIDS Legal Network:

People living with HIV currently face imprisonment for aggravated sexual assault and a lifetime designation as a sex offender for not disclosing their HIV status to sexual partners, even in cases where there is little or even zero risk of transmission. This means a person engaging in consensual sex that causes no harm, and poses little or no risk of harm, can be prosecuted and convicted like a violent rapist. We welcome the Committee’s recognition of this unjust reality and their call to end the use of sexual assault laws. We and our allies have spent many years advocating for this critical change.

The report also recommends that Canada limits HIV criminalisation to actual transmission only. The Legal Network notes:

But we must go further: criminal prosecution should be limited to cases of intentional transmission as recommended by the UN’s expert health and human rights bodies. Parliament should heed such guidance. Criminal charges and punishments are the most serious of society’s tools; their use should be limited and a measure of last resort.

However, one of the recommendations that the Legal Network takes issue with is the recommendation to broaden any new law to include other infectious diseases.

Infectious diseases are a public health issue and should be treated as such. We strongly disagree with the recommendation to extend the criminal law to other infectious diseases. We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.

Currently, there is a patchwork of inconsistent approaches across each province and territory. Only three provinces — Ontario, British Columbia and Alberta — have a formal policy in place or have directed Crown prosecutors to limit prosecutions of HIV non-disclosure, and they all fall short of putting an end to unjust prosecutions.

A December 2018 federal directive to limit HIV criminalisation, which solely applies to Canada’s territories, is already having some impact — in January 2019 it led to Crown prosecutors in the Northwest Territories dropping a wrongful sexual assault charge against a man living with HIV in Yellowstone. “We followed the directive and chose not to prosecute,” said Crown attorney Alex Godfrey.

Other positive recommendations in the report include:

  • An immediate review of the cases of all individuals who have been convicted for not disclosing their HIV status and who would not have been prosecuted under the new standards set out in the recommendations of the Committee.
  • These standards must reflect “the most recent medical science regarding HIV and its modes of transmission and the criminal law should only apply when there is actual transmission having regard to the realistic possibility of transmission. At this point of time, HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission.”
  • And, until a new law is drafted and enacted (which is only likely to happen if the current Liberal Government is re-elected in October), there should be implementation of a common prosecutorial directive across Canada to end criminal prosecutions of HIV non-disclosure, except in cases where there is actual transmission.

The report also recommends that any new legislation should be drafted in consultation with “all relevant stakeholders including the HIV/AIDS community”, which the Legal Network also welcomed.

The report is the result of a study of the ‘Criminalization of Non-Disclosure of HIV Status’ that ran between April and June 2019. Many Canadian experts testified as key witnesses to help MPs gain insight into why Canada’s current approach is wrong. HIV JUSTICE WORLDWIDE also submitted a brief to the committee, providing international context to Canada’s extremely severe approach to HIV non-disclosure.

The Legal Network concludes:

The next step is actual law reform. The report makes clear that change to the criminal law is needed. Any new legal regime must avoid the harms and stigma that have tainted the law these past 25 years.

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Today, HIV JUSTICE WORLDWIDE has published “Making Media Work for HIV Justice: An introduction to media engagement for advocates opposing HIV criminalisation” in three additional languages: Spanish, French and Russian. [Click on the image to download the pdf]

The purpose of this critical media toolkit is to inform and equip global grassroots advocates who are engaged in media response to HIV criminalisation–and to demystify the practice of working with, and through, media to change the conversation around criminalisation.

The toolkit provides an introduction to the topic of HIV criminalisation and the importance of engagement with media to change narratives around this unjust practice.

The toolkit also includes reporting tips for journalists, designed to educate writers and media makers around the nuances of HIV criminalisation, and the harms of inaccurate and stigmatising coverage.

Finally, the toolkit also includes a number of case studies providing examples of how media played a significant role in the outcome, or the impetus, of HIV criminalisation advocacy.

Positive Women’s Network – USA (PWN-USA), the HIV JUSTICE WORLDWIDE Steering Committee member organisation that produced the toolkit, has been working on HIV criminalisation for many years, and was an instrumental part of the coalition that brought HIV criminal law reform to the US state of California.

The original English version of “Making Media Work for HIV Justice: An introduction to media engagement for advocates opposing HIV criminalisation” along with the translations, were supported by a grant from the Robert Carr Fund for Civil Society Networks.

The new translations are the latest additions to the HIV JUSTICE Toolkit, currently available in English and French, and soon to be available in Spanish and Russian, which provides resources from all over the world to assist advocates in approaching a range of advocacy targets, including lawmakers, prosecutors and judges, police, and the media.

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A new report published today (May 29th 2019) by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE provides clear evidence that the growing, global movement against HIV criminalisation has resulted in more advocacy successes than ever before. However, the number of unjust HIV criminalisation cases and HIV-related criminal laws across the world continue to increase, requiring more attention, co-ordinated advocacy, and funding.

Advancing HIV Justice 3: Growing the global movement against HIV criminalisation provides a progress report of achievements and challenges in global advocacy against HIV criminalisation from 1st October 2015 to 31st December 2018.

Although the full report is currently only available in English, a four-page executive summary is available now in English, French, Russian and Spanish.  The full report will be translated into these languages and made available later this summer.

The problem

HIV criminalisation describes the unjust application of criminal and similar laws to people living with HIV based on HIV-positive status, either via HIV-specific criminal statutes or general criminal or similar laws. It is a pervasive illustration of how state-sponsored stigma and discrimination works against a marginalised group of people with immutable characteristics. As well as being a human rights issue of global concern, HIV criminalisation is a barrier to universal access to HIV prevention, testing, treatment and care.

Across the globe, laws used for HIV criminalisation are often written or applied based on myths and misconceptions about HIV and its modes of transmission, with a significant proportion of prosecutions for acts that constitute no or very little risk of HIV transmission, including: vaginal and anal sex when condoms had been used or the person with HIV had a low viral load; oral sex; and single acts of breastfeeding, biting, scratching or spitting.

Our global audit of HIV-related laws found that a total of 75 countries (103 jurisdictions) have laws that are HIV-specific or specify HIV as a disease covered by the law. As of 31st December 2018, 72 countries had reported cases: 29 countries had ever applied HIV-specific laws, 37 countries had ever applied general criminal or similar laws, and six countries had ever applied both types of laws.

During our audit period, there were at least 913 arrests, prosecutions, appeals and/or acquittals in 49 countries, 14 of which appear to have applied the criminal law for the first time. The highest number of cases were in Russia, Belarus and the United States. When cases were calculated according to the estimated number of diagnosed people living with HIV, the top three HIV criminalisation hotspots were Belarus, Czech Republic and New Zealand.

The pushback

Promising and exciting developments in case law, law reform and policy took place in many jurisdictions: two HIV criminalisation laws were repealed; two HIV criminalisation laws were found to be unconstitutional; seven laws were modernised; and at least four proposed laws were withdrawn. In addition, six countries saw precedent-setting cases limiting the overly broad application of the law through the use of up-to-date science.

The solution

Progress against HIV criminalisation is the result of sustained advocacy using a wide range of strategies. These include:

  • Building the evidence base Research-based evidence has proven vital to advocacy against HIV criminalisation. In particular, social science research has been used to challenge damaging myths and to identify who is being prosecuted, in order to help build local and regional advocacy movements.
  • Ensuring the voices of survivors are heard HIV criminalisation advocacy means ensuring that HIV criminalisation survivors are welcomed and supported as advocates and decision-makers at all stages of the movement to end HIV criminalisation.
  • Training to build capacity Successful strategies have focused on grassroots activists, recognising that training events must be community owned and provide opportunities for diverse community members to come together, hold discussions, set agendas, and build more inclusive coalitions and communities of action.
  • Using PLHIV-led research to build community engagement capacity Research led by people living with HIV (PLHIV) provides a mechanism to engage communities to develop in-depth understanding of issues and build relationships, mobilise and organise.

  • Using science for justice HIV criminalisation is often based on outdated and/or inaccurate information exaggerating potential harms of HIV infection. In addition, HIV-related prosecutions frequently involve cases where no harm was intended; where HIV transmission did not occur, was not possible or was extremely unlikely; and where transmission was neither alleged nor proven beyond a reasonable doubt.
  • Engaging decision-makers through formal processes Activists have worked to bring about legal and policy changes not only by lobbying local decision-makers, but also by engaging in other formal processes including using international mechanisms to bring HIV criminalisation issues to the attention of state or national decision-makers.
  • Acting locally and growing capacity through networks Many community organisations working to limit HIV criminalisation are actively supporting grassroots community advocates’ participation at the decision-making table.
  • Getting the word out and engaging with media Activists have employed diverse strategies to extend the reach of advocacy against HIV criminalisation including pushing the issue onto conference agendas, presenting messaging through video, working through digital media forums, using public exhibitions to push campaign messaging, and holding public demonstrations. Sensationalist headlines and misreporting of HIV-related prosecutions remain a major issue, perpetuating HIV stigma while misrepresenting the facts. Activists are endeavouring to interrupt this pattern of salacious reporting, working to improve media by pushing alternative, factual narratives and asking journalists to accurately report HIV-related cases with care.
Acknowlegements

Advancing HIV Justice 3 was written on behalf of HIV JUSTICE WORLDWIDE by the HIV Justice Network’s Senior Policy Analyst, Sally Cameron, with the exception of the Global overview, which was written by HIV Justice Network’s Global Co-ordinator, Edwin J Bernard, who also edited the report.

We would especially like to acknowledge the courage and commitment of the growing number of advocates around the world who are challenging laws, policies and practices that inappropriately regulate and punish people living with HIV. Without them, this report would not have been possible.

We gratefully acknowledge the financial contribution of the Robert Carr Fund to this report.

A note about the limitations of the data

The data and case analyses in this report cover a 39-month period, 1 October 2015 to 31 December 2018. This begins where the second Advancing HIV Justice report – which covered a 30-month period, 1 April 2013 to 30 September 2015 – left off. Our data should be seen as an illustration of what may be a more widespread, but generally undocumented, use of the criminal law against people with HIV.

Similarly, despite the growing movement of advocates and organisations working on HIV criminalisation, it is not possible to document every piece of advocacy, some of which takes place behind the scenes and is therefore not publicly communicated.

Despite our growing global reach we may still not be connected with everyone who is working to end HIV criminalisation, and if we have missed you or your work, we apologise and hope that you will join the movement (visit: www.hivjusticeworldwide.org/en/join-the-movement) so we can be in touch and you can share information about your successes and challenges.

Consequently, this report can only represent the tip of the iceberg: each piece of information a brief synopsis of the countless hours and many processes that individuals, organisations, networks, and agencies have dedicated to advocacy for HIV justice.

Suggested citation: Sally Cameron and Edwin J Bernard. Advancing HIV Justice 3: Growing the global movement against HIV criminalisation. HIV Justice Network, Amsterdam, May 2019.

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HIV JUSTICE WORLDWIDE along with our partners at The Eurasian Women’s Network on AIDS and Global Network of People Living with HIV (GNP+) welcome this week’s announcement of an amendment to Article 157 of the Criminal Code of the Republic of Belarus, which finally allows consent following disclosure to sexual partner as a defence. Whilst recognizing there is still a long way to go to remove all unjust criminal laws against people living with HIV in Belarus, we congratulate our partners and colleagues in Belarus People PLUS for this achievement!

Today, Parliamentarians of the House of Representatives of the National Assembly of the Republic of Belarus adopted in the second reading three bills, one of which was the law “On introducing amendments to some codes of the Republic of Belarus”. Among other changes, an amendment was adopted to article 157 of the Criminal Code of the Republic of Belarus (one of the most draconian HIV-specific criminal laws in the world), which now allows that people who have warned their partners will no longer be held criminally responsible for potential or perceived HIV exposure or transmission.

Read Yana’s story on GNP+’s website

Until today, Article 157 states that people living with HIV are totally criminally liable for potential or perceived HIV exposure or transmission, even if the so-called injured party had no complaints against their partner, knew about the risks and consented. Prosecutions took place because infectious disease doctors informed police and many people were convicted (read Yana’s story here)

In 2017, 130 criminal cases were initiated under Article 157 of the Criminal Code of the Republic of Belarus, with another 48 in the first half of 2018. Now, it will be possible to revisit those cases.

Anatoly Leshenok, representative of the NGO, People Plus states: “The adopted changes are only the first step in achieving our goal of decriminalising HIV transmission. According to information received from the department for drafting bills, other, more fundamental changes to Article 157 of the Criminal Code of Belarus have not been approved. It is necessary to continue to work with these State structures and with public opinion in order to form a more tolerant attitude towards HIV-positive people. But those changes that have been adopted today –  that’s a success for our team! ”

Anatoly Leshenok. Photo: UNAIDS Country Office in Belarus

After approval by the Council of the Republic and the President, the amendments will make it possible to revisit previous sentences of the courts, and improve lives of people that were broken previously, as well it provide opportunity now and in the future for people living with HIV in serodiscordant partnerships to plan their lives without worrying if they are criminals every time they have sex.

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[Scroll down for English]

La version française de la boîte à outils de HIV JUSTICE WORLDWIDE visant à soutenir le plaidoyer contre la pénalisation du VIH est disponible en ligne.

Les juristes et militants francophones qui luttent contre les lois obsolètes de pénalisation du VIH disposeront désormais d’une nouvelle ressource indispensable avec la publication de la version française de la boîte à outil de plaidoyer contre la pénalisation du VIH de HIV JUSTICE WORLDWIDE. 

Cette ressource vise à soutenir les intervenants dans leur travail contre la pénalisation du VIH à tous les niveaux, que ce soit dans le domaine de l’éducation des communautés et des législateurs ou pour la défense individuelle des affaires pénales.

Conçue par le HIV Justice Network (HJN) et développée avec l’aide et l’assistance inestimable des membres du réseau francophone de HIV JUSTICE WORLDWIDE, la boîte à outils a été financée par une subvention du Robert Carr Fund.

La boîte à outils rassemble près de 170 documents pertinents aux pays francophones,  organisés en douze rubriques principales, elles-mêmes subdivisées en plusieurs sous-sections:

  1. Les effets de la pénalisation sur la riposte au VIH
  2. Que disent les experts
  3. Organiser le plaidoyer
  4. Comprendre le droit
  5. Le droit à un procès équitable
  6. Utiliser les données scientifiques pour renforcer l’argument
  7. Travailler avec la police
  8. Interpeler les procureurs
  9. Renseigner les avocats
  10. Informer les juges
  11. Intervenir dans les médias
  12. Autres boites à outils

En plus de la classification par thème, l’ensemble de la boite à outils est consultable par mot clef, date, pays etc.

La boite à outils est pour l’instant uniquement disponible en anglais et en français, mais HIV JUSTICE WORLDWIDE travaille actuellement sur une version espagnole et russe, prévues pour 2019

Pour explorer les ressources de notre boîte à outils, rendez-vous à l’adresse suivante: http://toolkit.hivjusticeworldwide.org/fr

Si vous trouvez la boîte à outils utile et/ou si vous avez des suggestions concernant des ressources à ajouter, contactez-nous info@hivjusticeworldwide.org.

With today’s publication of the French version of HIV JUSTICE WORLDWIDE’s Advocacy Toolkit, French-speaking lawyers and activists fighting unjust and outdated HIV criminalisation in Francophone countries around the world now have an indispensable new resource.

The Toolkit, available at: http://toolkit.hivjusticeworldwide.org/fr/ aims to support stakeholders in their work against HIV criminalisation at all levels, whether educating community or legislators or for the individual defense of criminal cases.Designed by the HIV Justice Network (HJN) and developed with the invaluable help and assistance of members of the HIV JUSTICE WORLDWIDE French-speaking network, the Toolkit was funded by a grant from the Robert Carr Fund.

The Toolkit brings together nearly 170 documents relevant to French-speaking countries, organised into twelve main sections, further subdivided into several subsections:

1. The effects of HIV criminalisation on the HIV response
2. What do the experts say
3. Organising advocacy
4. Understanding the law
5. The right to a fair trial
6. Using scientific data to reinforce our arguments
7. Working with the police
8. Educating prosecutors
9. Informing lawyers
10. Informing judges
11. Intervening in the media
12. Other toolkits

In addition to the classification by theme, the whole Toolkit is searchable by keyword, date, country etc.

The HIV Justice Toolkit is only available in English and French, but HIV JUSTICE WORLDWIDE is currently working on Spanish and Russian versions, planned for 2019.

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Today, on International Human Rights Day, the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK) and the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) have launched the Positive Justice campaign to finally end HIV criminalisation in Kenya.

Today’s Positive Justice campaign launch (photo: @KELINKenya via Twitter)

In 2015, in Aids Law Project v Attorney General and Others [2015] the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act unconstitutional and suspended the law. The High Court ruling focused on the absence of a definition for “sexual contact”, holding that it is impossible to determine what acts were prohibited. It also found the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.

However, Section 26 of the Sexual Offences Act (2006) still contains vague and overly broad provisions that have resulted in a number of recent arrests and unjust prosecutions for biting (March 2018), breastfeeding (September 2018), and alleged non-disclosure (December 2018).

Today’s Positive Justice campaign launch (photo: @KELINKenya via Twitter)

Consequently, today KELIN have filed a petition asking the High Court in Nairobi to strike down as unconstitutional Section 26 of the Sexual Offences Act on the grounds that it discriminates against people living with HIV, women, and the poor, and violates a number of fundamental human rights.

According to a KELIN press release published today

The prosecuting authority’s interpretation of Section 26 of the Sexual Offences Act, as demonstrated by the prosecutions of several of the PLHIV challenging the law, effectively makes it a crime for a woman with HIV to birth and raise children. The prevailing interpretation also effectively criminalizes marriage between a person who has HIV and a person who does not.

“Laws that make criminals of people simply for having HIV ignore science. People who are on HIV treatment and are virally suppressed are not infectious. The key to a successful HIV response and ending AIDS is making sure everyone with HIV knows their status and gets on treatment. These laws make that impossible. Thousands of discordant couples and breastfeeding mothers living all over Kenya run the risk of being arrested and charged under this provision if they come forward for HIV testing,” noted M.A, the fourth petitioner and a representative of the Discordant Couples in Kenya.

HIV criminalization laws are also notorious for abuse and arbitrary enforcement. “Such abuse will always be targeted at persons living with, vulnerable to or believed to be living with HIV whether or not their actions were culpable and whether or not their actions exposed another to the risk of contracting HIV,” cautioned Mr. Nelson Otwoma, the Director at the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK).

It is for this reason that five people living with HIV and stakeholders working in HIV response came together to file the petition and launch the campaign dubbed Positive Justice. The campaign seeks to raise awareness on the negative effects of enforcement of the law on PLHIV, and engage relevant stakeholders including the media, legislature, judiciary, law enforcers, and Ministry of Health in advocating for the rights of people living with HIV.

“This petition will not only safeguard the rights of those living with and affected by HIV and other sexually transmitted infections but also help alleviate the discrimination and stigma they face and help Kenya remain on track in achieving the 2020 UN AIDS Fast Track targets in ending AIDS,’ said Mr. Allan Maleche, the Executive Director at KELIN.

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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.  

BEYOND BLAME 2018 - Plenary 1 - YouTube

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 and science 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.
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News Release 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 — Today, 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, now underway.

“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 today’s 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/

HIV JUSTICE WORLDWIDE is a growing, global movement to shape the discourse on HIV criminalisation as well as share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration. It is run by a Steering Committee of ten partners – AIDS Action Europe, AIDS-Free World, AIDS and Rights Alliance for Southern Africa (ARASA), Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV (GNP+), HIV Justice Network, International Community of Women Living with HIV (ICW), Southern Africa Litigation Centre (SALC), Sero Project, and Positive Women’s Network – USA (PWN-USA) – and currently comprises more than 80 member organisations internationally.

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Starting today, thousands of activists, scientists, media and others working in the HIV sector will descend upon Amsterdam for the 22nd International AIDS Conference (AIDS 2018).

For those of you able to be in Amsteram make sure you don’t miss all the amazing HIV criminalisation events taking place before and during the conference.

Download and print this 2-page pdf covering the HIV criminalisation highlights (including pre-conferences, posters and Global Village events) put together by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE.

STOP PRESS: For the first time since Edwin Cameron’s call to action at AIDS 2008 in Mexico City, HIV criminalisation is 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, will speak from 9.30am about, ‘Putting HIV science into the criminal justice system: Impacting lives’.

As well as highlighting the impact of HIV criminalisation on individuals, the session will alert AIDS 2018 delegates to the forthcoming ‘Expert Consensus Statement on the Science of HIV in the Context of Criminal Law’ that will be published on Wednesday 25 July 2018 at 3.15pm in the Journal of the International AIDS Society (JIAS).

The Expert Consensus Statement was authored by a global panel of leading scientists, supported by IAPAC, IAS and UNAIDS in consultation with HIV JUSTICE WORLDWIDE.

It is expected to be a key reference for clarifying important issues of HIV science in the context of criminal law and is aimed at expert witnesses, but likely to be useful for police, prosecutors, lawyers, judges, lawmakers and advocates.

You will be able to find out more about the Expert Consensus Statement, including what it means for HIV criminalisation advocacy, on Wednesday after 3.15pm Amsterdam time, by visiting http://www.hivjusticeworldwide.org where it will be highlighted on the front page.

And of course, we hope to see you at HIV JUSTICE WORLDWIDE’s one day conference this Monday July 23rd, Beyond Blame 2018: Challenging HIV Criminalisation.

Download the Beyond Blame 2018 final programme.

Only a few places remain, so register now if you want to attend. 

Otherwise you can watch the entire meeting live on the HIV JUSTICE WORLDWIDE YouTube channel and Tweet any comments or questions using the hashtag #BeyondBlame2018.

You can also the follow these other HIV criminalisation hashtags:

  • #HIVJUSTICEWORLDWIDE
  • #HIVCrim
  • #HIVIsNotACrime
  • #AIDS2018
  • #BringScienceToJustice
     
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Beyond Blame 2018: Challenging HIV Criminalisation is a one-day meeting for activists, advocates, lawyers, scientists, healthcare professionals, researchers, lawyers, policymakers, and anyone else interested in working to end HIV criminalisation.

The meeting is being convened by the Steering Committee of HIV JUSTICE WORLDWIDE – comprising AIDS Action Europe, AIDS-Free World, AIDS and Rights Alliance for Southern Africa (ARASA), Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV (GNP+), HIV Justice Network, International Community of Women Living with HIV (ICW), Southern Africa Litigation Centre (SALC), Sero and Positive Women’s Network – USA (PWN-USA).

The programme includes interactive panels, keynote presentations and parallel workshops focusing on critical issues in the fight against HIV criminalisation around the world.

The latest programme can be downloaded by clicking on the image below:

With only a 220 maximum capacity, space is now very limited, so if you plan to attend you should register as soon as possible at this link: https://www.eventbrite.co.uk/e/beyond-blame-2018-registration-registration-45640621327

But don’t worry if you can’t be in Amsterdam: we will be live streaming all of the plenary sessions on De Balie’s VImeo page as well as onto the HIV Justice Network’s Facebook page.

And you can be part of the conversation on Twitter using the hashtag #BeyondBlame2018

Beyond Blame 2018 is supported by a grant from the Robert Carr Fund for Civil Society Networks.

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