Judges, lawyers, politicians and advocates unite around the world to condemn criminalisation

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Over the past week, the global movement against criminalisation of HIV transmission received its biggest boost since the International AIDS Conference in Mexico last July. In rallies and meetings in Australia, Canada and Sweden leading judges, lawyers and politicians joined with HIV-positive advocates and civil society organisations to condemn the criminal justice system's current approach to HIV non-disclosure, exposure and transmission.

Last year, following an epidemic of new criminal HIV transmission laws in Africa, and an increasing number of prosecutions under existing laws, South African Constitutional Court Justice Edwin Cameron made an impassioned call for “a campaign against criminalisation” in Mexico City. In the past week, Mr Justice Cameron has appeared at meetings in Sweden and Canada to help continue the campaign.

At a symposium on HIV and human rights, hosted by the Canadian HIV/AIDS Legal Network, Mr Justice Cameron highlighted that Canada has the "dark distinction" of having prosecuted, per capita, more people living with HIV than any other country for non-disclosure prior to otherwise consensual, unprotected sex.

Glossary

criminalisation

In HIV, usually refers to legal jurisdictions which prosecute people living with HIV who have – or are believed to have – put others at risk of acquiring HIV (exposure to HIV). Other jurisdictions criminalise people who do not disclose their HIV status to sexual partners as well as actual cases of HIV transmission. 

disclosure

In HIV, refers to the act of telling another person that you have HIV. Many people find this term stigmatising as it suggests information which is normally kept secret. The terms ‘telling’ or ‘sharing’ are more neutral.

stigma

Social attitudes that suggest that having a particular illness or being in a particular situation is something to be ashamed of. Stigma can be questioned and challenged.

consent

A patient’s agreement to take a test or a treatment. In medical ethics, an adult who has mental capacity always has the right to refuse. 

"Canada's wide approach to exposure offences is sending out a terribly retrograde message to other countries, especially on my own continent, in Africa," he said during a public lecture in Toronto on Friday night, prior to the weekend symposium.

Earlier in the week, Canadian MPs Libby Davies, Bill Siksay and Hedy Fry had joined with activists, people living with HIV, and supporters at a rally on Ottawa's Parliament Hill, organised by the grass roots advocacy group Legalize AIDS to protest Canada's criminalisation of people with HIV due to, they what they claim are discriminatory HIV disclosure laws.

Libby Davies MP for Vancouver East, told the rally: "We're here today to take a very strong position that a criminalised approach to HIV/AIDS is not going to deal with the public health issues that we need to deal with. It's not going to deal with the issues of complex human behaviour that we need to deal with. It's not going to deal with issues of sexuality and how we approach our individual and collective and societal responsibilities."

Efforts to mitigate the impact of criminal prosecutions are also taking place in Australia. Last Thursday, Australian High Court Justice Virginia Bell helped launch a new criminal HIV transmission guide for legal practitioners produced by New South Wales' HIV/AIDS Legal Centre (HALC).

Speaking at the launch, leading civil rights lawyer, David Buchanan, noted that there was a growing tension between the "extraordinary range and depth of the public health forces marshalled against laws that criminalise people with HIV" and public opinion.

However, he said that the movement against criminalisation is not clear-cut, since "the prosecution of people with HIV in [New South Wales] has the potential both to vindicate people’s basic rights to protection from harm, yet also the potential to disrupt one of the world’s more successful exercises in the protection of public health."

And last Tuesday, Mr Justice Cameron addressed a meeting in Stockholm organised by HIV Sweden to discuss HIV and the criminal law in Sweden and other Nordic countries.

The meeting heard that Sweden's laws were often applied selectively and discriminatory, including the recent case of an African migrant woman who had gone to the police after being raped by two men.

However, rather than charge her assailants, the police charged the woman with HIV exposure. The case is still ongoing.

Peter Gröön, of Stockholm County Council, shared data showing that African migrants – ten of the 16 people prosecuted in the past five years – also received longer prison sentences than their Swedish counterparts. Mr Justice Cameron told the meeting that this kind of HIV exceptionalism, which is fuelled by stigma, must not be tolerated. "We want [HIV to be treated] neither better, nor worse than any other disease," he said.

The meeting also heard that a coalition of grass roots and civil society organisations in Norway might lead to an abolition of Norway's current HIV exposure and transmission law, Section 155, which has led to ten prosecutions the past five years.

The law, which does not allow HIV-negative people to consent to unprotected sex, and makes little distinction between HIV exposure and transmission, places the burden on HIV-positive individuals to both disclose HIV status and insist on condom use in order to be able to avoid potential prosecution.

Through a campaign that has included providing every MP in Norway with information about the inequities of the law, and a major newspaper article from Mr Justice Cameron, published in May, representatives of HIV Manifesto and HIV Norway were hopeful that the law will be repealed during the country's revision of the its Penal Code.

The meeting also heard that a similar opportunity might also be possible in Sweden later in the year, during the pubic debate that will follow a proposal to lengthen prison sentences for assault (the law under which criminal HIV exposure and transmission is prosecuted in Sweden).