Criminalisation Project Draft Pilot Report

1. Criminalisation Project Draft Pilot Report Dr Matthew Weait Reader in Socio-Legal Studies Birkbeck College University of London

2. Scope of Presentation • Background and justification for the project • Project description • Human Rights Audit methodology • Some findings from the Pilot Survey • Issues arising from workshop discussion • Next steps

3. Background and Justification • Widespread concern about the impact of criminalisation and its impact on HIV prevention efforts / stigma • Evidence base • Relatively strong on extent of criminalisation (GNP+ Global Scan / Edwin Bernard) • Relatively weak as regard impact on • risk behaviour, and • social / political / prevention dimensions

4. Background and Justification • Countries in the region differ widely in their approach to criminalisation and use of public health law • These differences relate to: • The Substantive Law • Harm: Transmission only, or transmission and exposure • Fault: Intention; intention and recklessness; intention, reckless or negligence (and different meanings of these in different countries) • Quarantine / isolation powers • Evidence • The use of scientific evidence (phylogenetic analysis) • The relevance of viral load • The relevance of condom use / risk minimisation • Policy and Practice • Prosecution practice • The use of quarantine and isolation powers under public health legislation

5. Country variation to be expected, but … • Legal and policy responses to HIV/AIDS should nevertheless conform to international human rights norms, because the protection of human rights is critical to health and wellbeing. • The International Guidelines on HIV/AIDS and Human Rights were developed “to assist States in translating international human rights norms into practical observance in the context of HIV/AIDS.” and affirm the principle that: “… the promotion and protection of human rights constitute an essential component in preventing transmission of HIV and reducing the impact of HIV/AIDS.” • More recently, and specifically, UNAIDS has urged governments “to limit criminalization to cases of intentional transmission” and advises that criminal law should not be applied where there is no significant risk of transmission.[1] __________________ [1] UNDP/UNAIDS Policy Brief Criminalization of HIV Transmission (August 2008), p.1. This position is affirmed in 10 Reasons to Oppose the Criminalization of HIV Exposure or Transmission (Open Society Institute, 2008), and elsewhere.

6. Project Description • This project considers the extent to which this injunction is honoured in the European region through an analysis and evaluation of the HIV transmission / exposure laws in five countries / jurisdictions in the WHO European region • Hungary • The Netherlands • Sweden • Switzerland • England and Wales (Scotland has separate criminal legal system)

7. Data • The analysis / evaluation is based on • criminal justice and public health legislation that has been or could be used against people for HIV transmission / exposure • policy outputs from governments, civil society and other organisations • criminal and public health cases involving HIV transmission / exposure • media coverage • academic scholarship / research • Data from questionnaire answered by HIV/AIDS organisations in the five countries

8. Aims • Not just to survey and gain information, but to evaluate • That evaluation concerns the extent to which the legal systems of countries theoretically committed to international human rights principles as regards criminalisation and the use of coercive powers are in fact demonstrating that commitment in practice • The project presupposes that national advocacy organisations are best placed to identify the extent of that commitment, and best placed to evaluate compliance • Using a Human Rights Audit (HRA) method the project attempts to identify the gap between international human rights obligations and national practice as implemented by a country’s legal system. • In doing so it aims to: • generate themes and questions that could inform any subsequent larger scale study, but also to produce a piece of coherent stand-alone research which is grounded firmly in a rights-based analysis • identify those areas where improvements – in knowledge, information and practice – can be made and human rights compliance enhanced

9. Human Rights Audit • Human Rights Audit (HRA) methodology involves allocating nominal scores to various indicators of compliance with human rights principles and obligations • A high score is given where there is full compliance, a low one where there is limited or no compliance. • The project uses the UNAIDS Guidelines on Human Rights and HIV/AIDS as its evaluative benchmark • Because the project is concerned with understanding the broader socio-legal context in which criminalisation and the exercise of public health powers takes place the survey asked Respondents questions about areas that relate directly or indirectly to this, e.g. • The intensity of punishment (length of prison sentences) • The extent of anti-discrimination legislation and its effectiveness • Access to legal advice and services for PLWHA • The existence / effectiveness of training around HIV for legal actors (judges, lawyers, prosecutors, police, prison officers) • Consultation about criminal and public health law • Government funded HIV prevention, and whether it affirms the principle of shared / joint responsibility for HIV transmission • Media coverage of HIV generally, and transmission / exposure cases

10. Some Findings • Substantial variation in degree of criminalisation and use of public health powers • Prosecution guidance uncommon • Evidence of discrimination against prisoners with HIV (e.g. segregation) • Shared responsibility not articulated in the law, and variable in HIV prevention literature • Anti-discrimination legislation not always effective in achieving its goals • Little or no training about HIV/AIDS for criminal justice professionals • Variable impact of PLWHA on law and policy relating to criminalisation • Inaccurate and unbalanced reporting of cases involving HIV transmission / exposure

11. Group Feedback • General sense that this is worthwhile • Some concern about what can legitimately be scored • Distinction needed between quantifiable data (number of prosecutions etc) and opinion • Support for advocacy organisations to have ownership of country evaluation • Possibility that some organisations more critical than others of their own country and that this may skew data • Need for registry of some kind (central database) • Identification of some concrete projects that could make a difference (e.g. training / education of criminal justice professionals / development of prosecution guidelines / sharing best practice and experience)

12. Next Steps • Draft report finalised • Comments of participants at workshop integrated where possible • Draft circulated for comment • Separate report on methodological issues and potential improvement • Roll out of project more widely?

13. Acknowledgements HIV Europe Survey respondents Robert James