edwin j bernard, co-ordinator, hiv justice network presentation: bringing science to justice,...
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On April 30, the Canadian HIV/AIDS Legal Network co-hosted an ancillary event, Bringing Science to Justice: Beyond the Canadian Consensus Statement on HIV and its Transmission in the Context of Criminal Law, at the Annual Canadian Conference on HIV/AIDS Research (CAHR), along with the Canadian Experts on HIV and Transmission Team, and HIV & AIDS Legal Clinic Ontario (HALCO).In 2012, the Supreme Court of Canada took a step in the wrong direction. The Court made a harmful decision that would have people living with HIV charged with aggravated sexual assault, jailed, and registered as sexual offenders – all this for not disclosing their status to a sexual partner, even if they used a condom or had an undetectable or low viral load. This is the case even if the positive person has no intent to harm and HIV is not transmitted.In May 2014, some 80 scientific experts Canada-wide signed a groundbreaking consensus statement. They were concerned that scientific evidence around HIV was not correctly interpreted and understood by police, judges, prosecutors, and lawyers who work in the criminal justice system, contributing to the wide use of these harsh charges and sentences in cases of HIV non-disclosure. Scientific evidence has a critical role to play during these criminal proceedings. Unfortunately we continue to see unfair prosecutions and unscientific rulings in cases of HIV non-disclosure and criminal defense lawyers report great challenges in getting expert witnesses to testify in court. Provincial Attorneys General continue to resist calls for more restraint in pursuing prosecutions.This ancillary event provided an opportunity to examine the consensus statement in greater depth and discuss how to move forward – ultimately, to bring science to justice.This presentation from Edwin Bernard, co-ordinator of the HIV Justice Network, shows how science has influenced HIV-related court rulings and criminal law on a global scale.TRANSCRIPT
Global media coverage of HIV prosecutions
Bringing Science to Justice: Beyond the Canadian Consensus Statement on HIV and its Transmission in the Context of Criminal Law
Introduction and global overviewEdwin J BernardCo-ordinator, HIV Justice Network, United Kingdom
CAHR Ancillary Event, April 30th 20151
P 20, HIV AND THE LAW: RIGHTS, RISKS & HEALTH, JULY 2012 WWW.HIVLAWCOMMISSION.ORG
CAHR Ancillary Event, April 30th 20152Why are we concerned? Human rights and justiceLaws and prosecutions for acts that represent no risk, or non-significant risk, of HIV transmission.Laws and prosecutions even when individuals use condoms or have low viral load or have disclosed their HIV-positive status.Excessive penalties for people with HIV found guilty (long prison sentences, sex offender registration).Failure to apply standard requirements for criminal liability to people with HIV (foreseeability, intent, causality, proportionality and proof).Selective and arbitrary prosecutions primarily impacting people with HIV from marginalized communities.CAHR Ancillary Event, April 30th 2015Why are we concerned? Public health impactNo evidence that laws/prosecutions enhance public health / national HIV response by:Deterring risky behaviour and/or encouraging disclosureIncapacitating or rehabilitating small numbers of PLHIV when HIV epidemics are driven by undiagnosed/untreated HIV infectionsMedia coverage contributes to public misunderstanding about HIV.Increasing HIV-related stigma, creating vicious circle of allegations/prosecutions. Misrepresents and overstates HIV-related risks and harms. Contributing to myths about HIV, including how it is transmitted and how best to protect oneself and ones partners.Further increases HIV-related stigma. Negatively impacting a person's willingness to learn about, or discuss, HIV.Undiagnosed/untreated HIV harms individual and public health.Creates a false sense that HIV is someone elses problem. Preventing HIV within a consensual sexual relationship is a shared responsibility.
CAHR Ancillary Event, April 30th 2015Where is overly broad HIV criminalisation happening? HIV-SPECIFIC LAWS, REPORTED PROSECUTIONS HIV-SPECIFIC LAWS, NO REPORTED PROSECUTIONSREPORTED PROSECUTIONS UNDER GENERAL LAWSNO REPORTED LAWS / PROSECUTIONS
CAHR Ancillary Event, April 30th 20155BASED 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
Where are the global law enforcement hotspots?
CAHR Ancillary Event, April 30th 20156UNITED 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
What does the 2013 UNAIDS guidance recommend?
Restrict the use, if any, of criminal law in the context of HIV, ideally to intentional transmission only.Where it is used, criminal justice principles (including key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof) should be upheld.Criminal law should not undermine public health efforts.Best available scientific and medical evidence should guide any use of criminal law.Treat like harms alike, with proportionate penalties.Condoms or low 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.
CAHR Ancillary Event, April 30th 20157
Where and how has science impacted HIV-relatedcriminal law and policy? (1)Netherlands: Detention or Prevention report (2004) led to limited role of criminal law via Supreme Court rulings on risk (2005-7); only intentional exposure or transmission a crime.Denmark: Government acknowledges reduced HIV harm on ART, 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); but grievous bodily harm prosecutions still possible.UK: England & Wales created prosecutorial (2008) and police guidance (2010) informed by science to limit overbroad application of law. Scotland followed in 2012. Reduced unjust prosecutions and convictions, but reckless transmission of HIV, herpes, hepatitis B/C and other STIs can be, and are, prosecutable: jury decides on harm.CAHR Ancillary Event, April 30th 20158
Where and how has science impacted HIV-related criminal law and policy? (2)Sweden: Swedish statement on sexual HIV risks (October 2013) impacted two cases (reduced sentence/acquittal) resulting in major policy shift, changing HIV disclosure obligations; Government review pending.United StatesMay 2014: Iowa became the first US state to modernize its draconian HIV-specific criminal law with public health/science input; in June 2014, Iowa Supreme Court also recognizes science of HIV risk (Rhoades).July 2014: US Department of Justice issues guidance to eliminate or reform HIV criminalisation laws based on up to date HIV science around risk and harm. February 2015: Military Court of Appeal recognizes low risk of heterosexual HIV transmission (Gutierrez). April 2015: Up-to-date science reflected in H.R.1586 - REPEAL HIV Discrimination Act of 2015.
CAHR Ancillary Event, April 30th 20159Canada: Criminal law and public health workshop (2013); Practical guide for HIV nurses (2013); Canadian consensus statement on HIV sexual risks (2014)
The future?Momentum against overly broad HIV criminalisation is growing, as evidence-base of harms grows, despite new laws being proposed and ongoing unjust prosecutions.Scientists and clinicians have played, and will continue to play, a crucial role in ensuring that HIV is treated rationally in the criminal justice system (CJS), with just outcomes for public health and human rights.18 month UNAIDS/UNDP task team on overly broad HIV criminalisation launches in June 2015. Will include a global consensus statement on HIV-related risks and harms aimed at CJS, as well as the unintended negative public health impact of laws and prosecutions for policymakers.For more information, visit www.hivjustice.net, also on Facebook and Twitter (@hivjusticenet).
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