Global media coverage of HIV prosecutions

HIV and criminalisation: a local and international perspectiveEdwin J BernardCo-ordinator, HIV Justice Network 16th Annual Conference of the National HIV Nurses Association (NHIVNA), Cardiff, 27 June 2014

16th Annual Conference of the National HIV Nurses Association (NHIVNA) 1Global overview of laws & prosecutionsGlobal HIV criminalisation hot-spotsInternational guidance and advocacyEncouraging international policy developmentsImpact on public healthGuidance for HIV nurses in CanadaThe UK situationWho gets prosecutedFurther resources

HIV and criminalisation: a local and international perspective16th Annual Conference of the National HIV Nurses Association (NHIVNA) 2

P 20, HIV AND THE LAW: RIGHTS, RISKS & HEALTH, JULY 2012 WWW.HIVLAWCOMMISSION.ORG

16th Annual Conference of the National HIV Nurses Association (NHIVNA) 3Where we know HIV exposure /transmission is a crime

HIV-SPECIFIC LAWS, REPORTED PROSECUTIONS HIV-SPECIFIC LAWS, NO REPORTED PROSECUTIONSREPORTED PROSECUTIONS UNDER GENERAL LAWSNO REPORTED LAWS / PROSECUTIONS16th Annual Conference of the National HIV Nurses Association (NHIVNA) 4BASED PRIMARILY ON THE WORK UNDERTAKEN FOR THE GNP+ GLOBAL CRIMINALISATION SCAN AND REPORTS COLLATED BY THE HIV JUSTICE NETWORKDATA INCOMPLETE NO SYSTEMS IN PLACE FOR ACCURATE NUMBERS OF ARRESTS, PROSECUTIONS AND CONVICTIONS. SIGNIFICANT UNDERREPORTING LIKELY.COUNTRIES WITH AT LEAST ONE JURISDICTION WITH AN HIV-SPECIFIC CRIMINAL LAW: 66COUNTRIES WHERE PROSECUTIONS ARE REPORTED TO HAVE TAKEN PLACE: 47COUNTRIES WITH AN HIV-SPECIFIC CRIMINAL LAW WITH REPORTED PROSECUTIONS: 20

Global law enforcement hotspots

*BASED ON KNOWN ARRESTS/PROSECUTIONS PER 1000 PLHIV 16th Annual Conference of the National HIV Nurses Association (NHIVNA) 5NINE IN EUROPEUNITED STATES (SD, ID, IA, MI, LA, TN, IL, MO, IN, OH, FL, OK)BERMUDAMALTASWEDENAUSTRALIA (TAS, SA, ACT, VIC, WA)NEW ZEALANDFINLANDNORWAYAUSTRIA DENMARK CANADA CZECH REPUBLIC SWITZERLAND HUNGARY SINGAPORE

UNAIDS guidance / Oslo Declaration on HIV Criminalisation

Read and sign the declaration at www.hivjustice.net/oslo

16th Annual Conference of the National HIV Nurses Association (NHIVNA) The Declaration provides a roadmap for policymakers and criminal justice system actors to ensure a linked, cohesive, evidence-informed approach to produce a restrained, proportionate and appropriate use of the criminal law, if any, to cases of HIV non-disclosure, potential exposure and non-intentional transmission. To date,over 1700 supporters from 100+ countries.Translated from English into French, German, Italian, Portuguese and Spanish.

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Encouraging policy developments (1)Netherlands: Detention or Prevention (2004) led to very limited role of criminal law via Supreme Court rulings on risk (2005-7)Denmark: Government acknowledges reduced risk/harm, suspends HIV-specific law (2011); currently undecided on new or no law.Switzerland: Swiss statement on viral load/risk leads to acquittal in Geneva (2008). Law on Epidemics revised in 2012 so only intentional communicable disease transmission a crime (2016)

16th Annual Conference of the National HIV Nurses Association (NHIVNA) 7

Encouraging policy developments (2)

Sweden: Criminal and public health law used together for most draconian approach to PLHIV in Europe. Swedish statement on sexual HIV risks (2013) impacted two cases resulting in major policy shift, Government review pending.United States: Iowa became the first US state to modernise its draconian HIV-specific criminal law in May 2014. Iowa Supreme Court recognises science.Canada: Criminal law and public health workshop (2013); Practical guide for HIV nurses (2013); Canadian consensus statement on HIV sexual risks (2014)

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16th Annual Conference of the National HIV Nurses Association (NHIVNA)

Download from: http://bit.ly/hivnursescanada

Canadian nurses guide (2013)

16th Annual Conference of the National HIV Nurses Association (NHIVNA) 10Covering everything from record keeping, confidentiality, viral load and safer sex to search warrants, subpoenas and testifying in court, it offers practical advice to HIV nurses and helps clarify their professional obligations regarding issues around HIV (non)disclosure and the criminal law.

The guide is an extremely important resource at a very difficult and confusing time in Canada not only for people living with HIV, but also those who work with, or advocate for them. Although the guide covers legal and scientific complexities around (non)disclosure that are specific to the Canadian context, it may also be helpful for HIV service providers in other jurisdictions. At the very least, this is a best practice model for others to emulate.

This excerpt from the introduction provides a good overview of the content and tone of the guide,

In the current Canadian legal context, it is important for nurses to maintain trust and therapeutic relationships with clients, to preserve a safe space for clients to talk about HIV disclosure issues, and to recognize that real-life experiences of HIV disclosure are far more complex than the idealized representation of disclosure expressed in the criminal law. Furthermore, it is important for nurses to continue providing excellent nursing care across the HIV healthcare continuum from prevention through diagnosis and treatment to care and support.Research papers, reports and grey literature all point to the challenges of providing nursing care given the current legal context. In these circumstances, it seems particularly prudent for nurses to clarify their role and responsibilities as members of the healthcare team and to have a clear understanding of their own obligations with respect to HIV non/disclosure.It would certainly be helpful for nurses to use this guide as a tool to engage other members of the healthcare team and identify their respective roles and responsibilities.This guide was primarily developed to support nurses who provide care to people living with HIV in Canada and offer some guidance on how to meet professional standards when dealing with non/disclosure in nursing practice. Guidance may not provide a definitive answer or indicate a correct course of action in a given circumstance. However, nurses should be aware that existing legal, ethical and professional frameworks can be relied upon to respond in a professionally sound manner to key questions and concerns.There are areas of nursing practice that will remain uncertain, so it is important for nurses to work on a case-by-case basis in collaboration with the other members of the healthcare team, seek guidance when necessary, initiate referrals to legal services when required, engage in reflective practice, and be mindful of their professional obligations. Laws, professional standards and policies can change at any time. It is important for nurses to remain aware of any new developments because these will inform their own professional obligations.

16th Annual Conference of the National HIV Nurses Association (NHIVNA) 11Question 1

Who can be prosecuted in England and Wales?

A. Someone with HIV who doesnt disclose and exposes a sexual partner to the risk of transmission.B. Someone with any STI who doesnt disclose and exposes a sexual partner to the risk of transmission.C. Someone with HIV who recklessly or intentionally infects a sexual partner.D. Someone with any STI who recklessly or intentionally infects a sexual partner.16th Annual Conference of the National HIV Nurses Association (NHIVNA) 12Question 1 (Answer)

Who can be prosecuted in England and Wales?

A. Someone with HIV who doesnt disclose and exposes a sexual partner to the risk of transmission.B. Someone with any STI who doesnt disclose and exposes a sexual partner to the risk of transmission.C. Someone with HIV who recklessly or intentionally infects a sexual partner.D. Someone with any STI who recklessly or intentionally infects a sexual partner.16th Annual Conference of the National HIV Nurses Association (NHIVNA) 13

The UK situation: Law

England, Wales, NI: Offences Against the Person Act 1861 (OAPA 1861). Section 20, 'reckless transmission, grievous bodily harm.

A person may be prosecuted and found guilty of reckless transmission of a sexual transmitted infection if all of the following apply:They knew they had an STI They understood how that STI is transmittedand that they might be infectious They had sex with someone who didnt know they had an STI They had sex without using safeguards (following healthcare workers advice)They are found to be only the person who could have transmitted the STI to their sexual partner(s). Scotland: Common law offence of culpable and reckless conduct. Exposure to HIV (without transmission) can be prosecuted.All prosecutions so far have concerned reckless behaviour, although the prosecution of intentional transmission is also possible.

16th Annual Conference of the National HIV Nurses Association (NHIVNA) 14Section 20 Inflicting bodily injury, with or without weapon ('reckless transmission') reads: Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable... to be kept in penal servitude." The maximum prison sentence is five years for each person someone is found guilty of infecting. There is no minimum sentence. Non-UK residents can be recommended for deportation on completion of their sentence.

Section 18 Wounding with intent to do grievous bodily harm ('intentional transmission') reads: Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person...with intent...to do some...grievous bodily harm to any person, shall be guilty of an offence, and being convicted thereof shall be liable...to imprisonment for life. The maximum sentence is life imprisonment, with no minimum.

There is no such charge as 'attempted reckless transmission: therefore recklessly exposing someone to the risk of HIV infection is not a crime. However, a malicious attempt to transmit HIV could be charged as 'attempted intentional transmission'.

The UK situation: Prosecutions

England & Wales: First prosecution and conviction for reckless HIV transmission in Oct 2003 (Mohammed Dica). Since then, to our knowledge, 22 cases have gone to court, but many more investigated; one death during proceedings.16 HIV convictions since 2003 (plus one hepatitis B and one herpes); 4 acquittals.Scotland: First prosecution and conviction for culpable and reckless conduct Feb 2001 (Stephen Kelly) 3 HIV convictions (one of these also for Hepatitis C; and one of these also for three counts of exposure)England & Wales created prosecutorial (2008) and police guidance (2010) informed by science to limit overbroad application of law. Scotland followed in 2012.

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Who gets prosecuted in England & Wales?

Of 22 cases which got to court 9 black African-born male heterosexual defendants (2 acquittals, one death) and 1 black Caribbean male het defendant7 white European/British-born male heterosexual defendants3 white male European/British-born gay defendants (2 acquittals)2 white European/British-born female heterosexual defendants.16th Annual Conference of the National HIV Nurses Association (NHIVNA) 16Question 2

Who gets disproportionately prosecuted in England and Wales?

A. White UK / European-born gay menB. African-born heterosexual menC. Caribbean-born heterosexual menD. White UK / European-born heterosexual men16th Annual Conference of the National HIV Nurses Association (NHIVNA) 17Question 2 (Answer)

Who gets disproportionately prosecuted in England and Wales?

A. White UK / European-born gay menB. African-born heterosexual menC. Caribbean-born heterosexual menD. White UK / European-born heterosexual men16th Annual Conference of the National HIV Nurses Association (NHIVNA) 18

Who gets prosecuted in England & Wales? (2)

Ethnic breakdown of male heterosexuals living with diagnosed HIV in UK: Total: 12,160White: 3,872 [31.8%] 41.2% male heterosexual defendantsBlack African: 6,555 [53.9%] 52.9% male hetersexual defendantsBlack Caribbean: 581 [4.8%] 5.9% male heterosexual defendantsSource: Yusef Azad, NAT. The criminal law and HIV transmission: prosecution, investigation, equalityHIV and Racial Minorities Workshop, Department of Law and Criminology, Aberystwyth University, 30 April 2014.

16th Annual Conference of the National HIV Nurses Association (NHIVNA) 19Despite high number of new diagnoses amongst gay men and other MSM, very few prosecutions and even fewer convictions.

Focus on complainants

Ethnic/sexuality/gender breakdown of new HIV diagnoses in UK 2003-2012: Total: 47,780All MSM: 26,433 [55.3%] 13.6% complainantsAll heterosexual males: 14,707 [30.8%] 9.1% complainantsAll heterosexual black African women: 18,340 [38.4%] 0% complainantsAll heterosexual white women: 3,760 [7.9%] 72.8% complainantsSource: Yusef Azad, NAT. The criminal law and HIV transmission: prosecution, investigation, equalityHIV and Racial Minorities Workshop, Department of Law and Criminology, Aberystwyth University, 30 April 2014.

16th Annual Conference of the National HIV Nurses Association (NHIVNA) 20Maybe we should think of the bias in these cases differently not in terms of who is accused but in terms of who is complaining?

If we think, rather crudely I accept, of potential complainants as those people who between 2003 and 2012 received a new HIV diagnosis ..

We can see that there is a strong disproportionate bias amongst complainants hose cases et to court towards straight white women (in reality bias may be even more pronounced since I havent been able to disentangle those black African women who got HIV overseas where partners would be outside jurisdiction

Why the bias?

Why is there a bias in court cases towards heterosexual white women complainants?Evidential reasons? e.g. number of partners, last negative test?Shock/Non-acceptance of diagnosis? NB prevention messages do not warn this group of HIV risk.Empowerment better equipped to take a case forward than, say, black African women?Criminal justice system bias towards ideal victim?

Source: Yusef Azad, NAT. The criminal law and HIV transmission: prosecution, investigation, equalityHIV and Racial Minorities Workshop, Department of Law and Criminology, Aberystwyth University, 30 April 2014.

16th Annual Conference of the National HIV Nurses Association (NHIVNA) 21Is there help from the system in some way in the success of these cases getting to court

Often gendered bias in accounts of HIV transmission which see women as the innocent victim which is not to deny the very real issues around gender inequality and coerced sex and rape

It is also possible that white women are seen as the least likely deserving of HIV? What role can HCW play?

Useful resources

BASHH/BHIVA Position statement HIV transmission, the law and the work of the clinical team www.bhiva.org/documents/Guidelines/Transmission/Reckless-HIV-transmission-FINAL-January-2013.pdf NAM Social & legal issues for people with HIV / Transmission of HIV as a criminal offence www.aidsmap.com/Transmission-of-HIV-as-a-criminal-offence/page/1497494/THT www.tht.org.uk/myhiv/Telling-people/LawNATwww.nat.org.uk/Our-thinking/Law-stigma-and-discrimination/Criminal-prosecutions.aspxHIV Justice Network www.hivjustice.net

16th Annual Conference of the National HIV Nurses Association (NHIVNA) 22Confidentiality is central to the health professional-patient relationship.Disclosure of personal information to police or other third parties without consent may only very rarely be in the public interest.Health professionals have a duty to properly advise patients on avoiding both prosecution and transmission.