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.
6
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)
16th Annual Conference of the National HIV Nurses Association
(NHIVNA) 8
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.
16th Annual Conference of the National HIV Nurses Association
(NHIVNA) 15
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.