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Edwin J Bernard Co- ordinator , HIV Justice Network

Doing HIV Justice: How Clinicians and Advocates Can Work Together to Ensure Up-To-Date Scientific and Medical Evidence Informs the Application of Criminal Law to Cases of HIV Exposure or Transmission Introduction and global overview. Edwin J Bernard Co- ordinator , HIV Justice Network .

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Edwin J Bernard Co- ordinator , HIV Justice Network

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  1. Doing HIV Justice:How Clinicians and Advocates Can Work Together to Ensure Up-To-Date Scientific and Medical Evidence Informs the Application of Criminal Law to Cases of HIV Exposure or TransmissionIntroduction and global overview Edwin J Bernard Co-ordinator, HIV Justice Network

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

  3. Where we know HIV non-disclosure, potential exposure / transmission is a crime HIV-SPECIFIC LAWS, REPORTED PROSECUTIONS HIV-SPECIFIC LAWS, NO REPORTED PROSECUTIONS REPORTED PROSECUTIONS UNDER GENERAL LAWS NO REPORTED LAWS / PROSECUTIONS

  4. Global law enforcement hotspots

  5. Why we are concerned? Human rights, justice and public health • Prosecutions for acts that represent no risk, or insignificant risk, of HIV transmission • Prosecutions against individuals who use condoms, have low viral load or use or other prevention strategies • Excessive penalties for people found guilty • Failure to apply standard requirements for criminal liability to people charged (intent, causation and proof) • Selective prosecution of people from marginalised communities • Media coverage that fuels public misunderstanding about HIV and increases HIV-related stigma

  6. Top 10 ‘HIV Criminalisation’ Myths • 1. Only the people most responsible for “spreading HIV” are arrested and prosecuted. • 2. If you have sex just once with someone who has HIV you are incredibly lucky if you aren't infected. • 3. Having unprotected sex with someone with HIV is like playing Russian Roulette. • 4. People with HIV are potential lethal weapons. • 5. HIV = AIDS = death sentence.

  7. Top 10 ‘HIV Criminalisation’ Myths • 6. It is the easiest thing in the world to tell someone you have HIV and people with HIV who don't tell their sexual partner(s) they have the virus are selfish, evil monsters. • 7. Scientific tests can easily tell who infected whom • 8. Scientific tests can easily tell when someone was infected. • 9. The criminal law can protect you from HIV. • 10.Police care about public health and healthcare workers are agents of law enforcement.

  8. UNAIDS guidance note • Restrict the use, if any, of criminal law in the context of addressing HIV. • Where it is used, criminal justice principles should be upheld. • Best scientific evidence should guide any use of criminal law. • Criminal law should not undermine public health efforts • Treat like harms alike, with proportionate penalties • Condoms orlow viral load = no significant risk; use shows no intent to harm • Non-disclosure alone is not proof of malicious intent • Limitations of phylogenetic analysis / RITA

  9. Encouraging policy developments (1) • Netherlands: ‘Detention or Prevention’ (2004) led to very limited role of criminal law via Supreme Court rulings on HIV risk (2005-7) • England & Wales: Prosecutorial guidance (2008) and police guidance (2010) developed, informed by science, to limit overbroad application of law. • Denmark: Government acknowledges reduced HIV 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)

  10. Encouraging policy developments (2) • Scotland: Prosecutorial guidelines highlights HIV risk reduction ART (2012) • Sweden: ‘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 based on scientific, legal and public health principles. 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)

  11. Where clinicians/nurses/scientists can impact HIV criminalisation

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