HIV on Trial: HIV criminalization laws and the trends towards increased criminalization of people living with HIV Maurice Tomlinson Legal Advisor, Marginalized Groups International AIDS Conference 2012 Getting to Zero Excuses: Understanding and Addressing HIV-Related Stigma and Discrimination: Friday, 27 July, 2012.

Presentation Outline HIV Specific Legislation: A US “Export?” The Language of Stigma in the Law. Problems with Proof. Pressing Old Laws into Service of Stigma: Common Law “Deadly Weapons”. Where we are today: Review, Repeal or Ramp up?

Bad law The Origin of HIV Criminalisation

The Aims of Criminal Law S. 142 Criminal Justice Act 2003 (UK). – (1) Any court dealing with an offender in respect of his offence must have regard to the following: (a)the punishment of offenders, (b)the reduction of crime (including its reduction by deterrence), (c)the reform and rehabilitation of offenders, (d)the protection of the public, and (e)the making of reparation by offenders to persons affected by their offence.

HIV Specific Legislation: US Example Early 1980’s: The virus is identified and the hysteria begins. – The SF Police Department equipped patrol officers with special masks and gloves for use when dealing with what the police called "a suspected AIDS patient" USA has first HIV prosecutions and enacts HIV-specific criminal statues.

HIV Specific Legislation: US Example 1990 Ryan Care Act required states to introduce laws criminalizing exposure to HIV as condition of federal funding Now 34 US states and 2 US territories have HIV- specific statutes.

US HIV Laws: Tools of Stigmatization Vague, inconsistent and overly-broad. Most criminalize possibility and not actual transmission. Some outlaw acts with no significant risk of transmission. – (sharing sex toys, spitting, oral sex) Some criminalize non-disclosure even if no risk of transmission.

Michigan “A Person who knows that he or she has AIDS, or knows that he or she is infected with HIV, and who engages in “sexual penetration” with another person without having informed the other person that he or she has HIV/AIDS, is guilty of a felony.” [no mention of use of a condom] Mich. Comp. Laws Ann. §

Tsunami of HIV Specific Criminal Laws Singapore (1992) – Infectious Disease Act criminalized HIV non-disclosure. Up to 10 yrs. Bermuda (1993) – Criminal Code Act § 324: Up to 20 years imprisonment. Australia (1993) – Crimes Act s. 19A – Up to 25 years. Denmark (1994) – Danish Criminal Code § 252(a) “fatal and incurable disease” interpreted by government order in 2001 as HIV.

Tsunami of HIV Specific Criminal Laws Cameroon – 2002 Zimbabwe – 2004 Nigeria Angola – 2004

HIV Specific Criminal Laws: USAID Exports Stigma USAID Action for West Africa Region in HIV/AIDS (AWARE) Project Sept “Regional Workshop to adopt a model law on STI/HIV/AIDS for West and Central Africa” – N’djamen, Chad. 13 African countries adopted versions of this law. 14 have laws which reflect some elements USAID publications call this a “great success.”

Unleashing “Deadly Weapons” Canada – Causing Bodily Harm, Aggravated Assault, Sexual Assault Causing Bodily Harm, Aggravated Sexual Assault, Attempted Murder, and Murder. – 1998 R v. Cuerrier invalidates consent. United States – Assault, Reckless Endangerment, Attempted Murder, Aggravated Prostitution, Bioterrorism, Terroristic Threats, Homicide. Sweden – Inflicting Bodily Injury, Gross Assault, Creating Danger to Another. Consent is invalid if transmission occurs. Condom use may be a mitigating factor.

Unleashing “Deadly Weapons” Austria – Commit an Act Likely to Cause the Danger of Spreading an Infectious Disease. Disclosure not a defence and transmission doesn’t have to occur. Switzerland – Deliberately Spreads a Dangerous Transmissible Human Disease. Disclosure is no defence. France – Poisoning, Administration of Dangerous Substances and/or bodily harm laws.

Unleashing “Deadly Weapons” Norway – Infectious Disease Law criminalizes “willful” and “negligent” exposure and transmission. Disclosure and Consent are no defence. Netherlands – Assault and Homicide Germany – Bodily Injury and Aggravated Assault but consent after disclosure is a defence.

Unleashing “Deadly Weapons” United Kingdom – 1861 Offences Against the Person Act “Grevious Bodily Harm.”’ – Scotland “culpable and reckless conduct.” Australia – Causing serious or grievous bodily disease. Italy – Bodily harm, aggravated bodily harm and culpable homicide.

Unleashing “Deadly Weapons” Finland – Assault but condom use after disclosure may limit possibility of prosecution. New Zealand – Criminal nuisance; wounding with intent; willfully infecting with a disease. Condom use negate need for disclosure.

What’s been Prosecuted? Biting, Spitting and other “bodily fluid assault.” – 1998 HIV+ Prisoner’s mouth and teeth considered “deadly and dangerous weapon.” – 2008 mentally ill African-American sentenced to 35 years for spitting at an officer. Vertical Transmission – Women in Austria, Canada, Sweden, USA for pregnancy, birth or breastfeeding. Men in France and USA convicted for vertical transmission. Sex Work – Even when no risk of transmission

What’s Been Prosecuted Blood Donation.

International Pressure 1996 UN OHCHR: Int’l Guidelines on HIV & HR – “…[A]pply general criminal offences to those exceptional cases.” 2002 UNAIDS: Criminal Law, Public Health… – Use alternatives to HIV specific criminal law 2007 UNAIDS and UNDP: Expert Meeting – Policy Brief urged non HIV-specific laws Global Parliamentary Meeting on HIV/AIDS – HIV legislation can further stigmatise HIV+.

International Pressure 2008 Swiss HIV Experts in S v. S. – ARV and undetectable viral = non-infectious HPTN 052 confirms 96% non-infectious rate in Heterosexual sero-discordant couples UN Special Rapporteur on the Right to Health. – Little if any benefit to HIV criminaliztion but real potential for alienation, stigmatization and fear. – Criminalizing non-malicious HIV transmission inconsistent with the right to health.

International Pressure 2011 Expert Meeting on the Scientific, Medical, Legal and HR Aspects of HIV Non-dsiclosure, Exposure and Transmission: – Criminal Law should be limited to cases where there is clear intent to transmit and actual transmission occurs Global Commission on HIV and the Law: – Countries must not enact HIV specific laws.

Negative Developments 2011 Nebraska and British Columbia pass HIV specific legislation based on “bodily fluid” assault Belgium had first HIV conviction under “poisoning” law. Congo also had first HIV conviction under poisoning law Romania passed HIV Criminal Statute.

Some Positive Developments 2005 Dutch Court used scientific evidence to narrow scope of law to only intentional HIV exposure or transmission New South Wales repeals HIV-specific statute Guinea, Togo and Senegal restrict criminal liability to intentional transmission of HIV Austrian Justice Ministry says HIV+ who have oral sex and used a condom no longer criminal.

Some Positive Developments 2011 Canadian Judge “HIV no longer an automatic death sentence.” 2011 Guyana Parliament rejects HIV law Mauritus revoked criminalisation of HIV transmission. Feb Denmark suspends HIV law. Norway is considering a repeal. Sept US Congresswoman Barbara Lee introduced REPEAL HIV Discrimination Act.

The Verdict?